Majority — MILLER J.
p. 188Ex parte The Milwaukee Railroad Company.
Syllabus
1. A case being properly in this court by appeal, the court has a right to issue any writ which may be necessary to render its appellate jurisdiction effectual.2. Accordingly, it will issue the writ of supersedeas if such writ be necessary for that purpose; the circumstances otherwise making it proper.
3. It will issue this writ rather than attain the same end by issuing a man- ■ damus to the court below, in a case where the issuing of a mandamus would control judicial action in a matter apparently one of discretion ; as ex gr. the approval or rejection of a bond offered for the court’s approval.
1. Hence, where, after an appeal to this court, the judge below refused to approve a bond for a supersedeas, because all the sureties were non-residents of the district, this court (though not agreeing with such judge in
p. 189
the opinion that mere non-residence within the district was a sufficient reason for rejecting a hond, if, in all other respects, it were unobjectionable) declined to issue a mandamus to compel the' judge to approve the bond and allow a supersedeas, considering its right to do this doubtful; but ordered that on filing a bond to be approved by the clerk of this court, a supersedeas should issue from this court.
Petition for a writ of mandamus.
The Circuit Court for the District of "Wisconsin having rendered a decree in favor of J. T. Soutter, survivor, &c., against the La Crosse and Milwaukee Railroad Company and the Milwaukee and Minnesota Railroad Company, on the 5th March, 1867, for $40,000, and ordered a sale of the road mortgaged to secure the debt, the last-mentioned company prayed an appeal to this court; which was allowed. Eor the purpose of staying proceedings on the decree, they offered a bond, in the penalty of $50,000, within the ten days allowed for that purpose, which the district judge declined to approve, but upon which he made the following indorsement :
“ March 16, 1867. ■
“ The counsel of complainant having objected to the allowance of this bond for supersedeas, on the ground that all the sureties-are non-residents of the district, for this reason this bond is not approved for a supersedeas.
“A. G-. Miller,
District Judge.”
The record of the case having been brought into this court on the appeal taken, the appellants now petitioned the eoui't for a mandamus to compel the district judge to approve the bond and allow a supersedeas, or for such other relief in the pi’emises as this court could give.
Messrs. Oram and Gashing, in favor of petition; Mr. Cary, contra.
delivered the opinion of the court.
Although this court does not concur in the opinion of the district judge, that the fact of the non-residence of the sure
p. 190
ties within the district is a sufficient reason for rejecting a bond which is in all other respects unobjectionable, we are not inclined to interfere by mandamus with the discretion of that judge in approving or rejecting a bond offered for his approval. If we had the right to do this, which is extremely doubtful, it is unnecessary, as the remedy which is in our own hands is ample. The case being properly in this court by appeal, we have, by the fourteenth section of the Judiciary Act, a right to issue any writ which may be necessary to render our appellate jurisdiction effectual. For this purpose the writ of supersedeas is eminently proper in a cas'e where the circumstances justify it, as we think they do in the present instance. Hardeman v. Anderson,[1] is an example of the exercise of this power precisely in point.
We shall therefore make an order, that upon the filing of a bond for the sum of $50,000, with the usual conditions, at any time within thirty days from this date, which shall be approved by the clerk of this court, a supersedeas will issue from this court to the judge of the Circuit Court of the United States for the District of Wisconsin, and to the marshal of the United States for said district, commanding a stay of proceedings on said decree until the further order of this court,
The same.being superseded.
* 4 Howard, 640 .