Railroad Co. v. Harris — 74 U.S. 574

Majority

p. 574

Railroad Company v. Harris.

Syllabus

To make a writ of error operate-as a supersedeas, it is indispensable that'the requirements of tbe act of Congress be strictly fulfilled. It is not enough that the writ be issued and served, but a copy of the writ must be lodged, fofi the adverse party, within ten days, Sundays exclusive, after judg1 ment or decree.

This was a motion for writs of supersedeas to the Supreme Court of, the District of Columbia to stay execution upon two judgments recovered in that court,-one'by. Harris, against the Baltimore and Ohio Railroad Company, and the. other by his administratrix, against the same defendant.

The first judgment was for injuries sustained by Harris, when a .passenger on the defendant’s railroad. The second was a judgment upon -scire facias, to .revive the former judgment, abated by the death of Harris, and to make his administratrix party to that judgment, and to have execution.

To bring .the first judgment into this court for review, a writ of error had been- sued’out by the railroad company, and a sufficient bond for prosecution was filed, within ten. days after rendition; but no copy of the writ of error appeared to have been lodged in the clerk’s office for the use of the defendant in erroi’.

The twenty-third section'of the Judicially Act thus declares:^[1]

“A writ ofCrror shall be a- supersedeas, and a stay of execution, in eases only where the writ of error is served by a copy thereof being lodged, for'the adverse party, in the clerk’s office, where the record'remains, within ten days, Sundays exclusive, after rendering the judgment' and passing the decree complained .of.”

' Messrs. Bradley- and Buchanan, in support-of the motion.' ■

Messrs. Davidge. an$ Fuller, contra.

delivered the opinion of the court.

The right of the plaintiff in órror to the writs for which

p. 575

the motion now before us is made, depends on the question whether, by the proceedings taken in the case, the writ of ■ error upon the first judgment became a supersedeas?

And this question is answered by the express words of the twenty-third section of the Judiciary Act.

The legislature has seen fit to make the lodging of a -copy of the writ, within ten days, a prerequisite to the operation of the writ as a supersedeas. The cause was removed from the inferior court to this court, by the issuing of the writ; and the due service of it upon the court to which it is addressed; but its additional effect, as a supersedeas,, depends upon compliance with the conditions imposed by the .act. We cannot dispense with that compliance in respect' to lodging a copy for the adverse, party.

The motion for writs of supersedeas in both cases, must,'' therefore, be denied;,and as the second writ of error brings nothing before us, unless the writ in the first'case operated-as a supersedeas under the statute, that writ must be .

Dismissed.