UNITED STATES SUPREME COURT DECISIONS ON-LINE

After a case has been docketed and dismissed under the forty-third rule of court, and the plaintiff in error sues out another writ of error, this Court will, when the case appears to require it, order a supersedeas to stay all proceedings pending the second writ of error.

The supersedeas is issued under the fourteenth section of the Act of 24 September, 1783.

At the preceding term of this Court, namely, on 28 February, 1845, Mr. Howard, on behalf of the defendant in error, moved for leave to file a certificate that a writ of error had been sued out, and for an order to docket and dismiss the case under the forty-third rule of Court.

This order was accordingly passed, and at the close of the term, no record having been filed by the plaintiffs in error, the case was dismissed.

At the present term, Mr. Crittenden, counsel for the plaintiffs in error, filed the following affidavit, namely:

"UNITED STATES OF AMERICA, Southern District of Mississippi."

"This day William Hardeman personally appeared before me, commissioner &c., for taking affidavits in civil cases &c., and made oath, that some time during the last summer, and many months

Page 45 U. S. 641

previous to the session of the present term of the Supreme Court of the United States, he applied to the Clerk of the Circuit Court of the United States for the Southern District of Mississippi to know what he should do in relation to the record in the case of Edward Anderson against the said Hardeman and others, on a writ of error from said circuit court, and the said clerk then told this affiant that he would prepare and send up to the Supreme Court of the United States the transcript of the record in said cause, and that all affiant would have to do would be to procure sureties for costs of suit in the Supreme Court. Trusting to this, and fully believing that said transcript would be duly sent up by the clerk to the Supreme Court, this affiant applied to Daniel W. Dickenson, a member of Congress, and amply solvent, to become his surety for the costs of the Supreme Court, which he promised to do. The said Dickenson was taken sick, and, as he informed affiant, had written to Joseph H. Peyton and Mr. Rayner, members of Congress, to become the sureties for costs. Affiant has been informed this day for the first time, by his counsel in the circuit court, that the transcript of said record had not been forwarded by the clerk as aforesaid. Affiant sends the same accompanying this affidavit, and prays that said record be filed and the case docketed, and if said suit be dismissed, that the same be set aside, the record filed, and the case docketed."

"WILL. HARDEMAN"

"Sworn to and subscribed before me on 26 February, A.D. 1845."

"THOS. SHACKELFORD"

"United States commissioner of Affidavits &c."

"for the Southern District of Mississippi"

Mr. Crittenden thereupon submitted the following motion, viz.:

"HARDEMAN ET AL. v. ANDERSON"

"This case was depending before this Court at its last term, upon writ of error operating as a supersedeas, and was then dismissed because the record was not filed. The cause of the failure to file is accounted for and explained in the affidavit now submitted to the Court. The affidavit was received here within a few days after the close of the last term, and too late, of course, to make the intended motion to set aside the dismission. Since then, the plaintiffs have sued out another writ of error, and executed another bond &c., but this not operating per se as a supersedeas, the plaintiffs are exposed to execution on the judgment below; they therefore move the Court for a supersedeas,"

&c.

This motion was sustained by Mr. Crittenden, who contended that the plaintiffs in error had used all reasonable exertion to have the record brought up in time, and referred to the case of Stockton v. Bishop, 2 How. 74. clubjuris

Page 45 U. S. 642

Mr. Howard opposed the motion. It did not appear that all reasonable exertion had been used by the party. The judgment appealed from was given in May, 1840, and the case was not docketed and dismissed until February, 1845. In the meantime, the plaintiff in error appears to have relied upon the clerk of the court below to send the record up. The effort to obtain security for costs was very faint. If such reasons are allowed to be sufficient to reinstate a case after dismissal under the rule, the rule itself may as well be abolished. Certainly, a court which passes a rule has power to relax it, whenever a proper occasion shall offer. But this motion does not apply to a case which has been dismissed. It is not to reinstate that case, but it is to call forth the power of the court in another case, upon another writ of error. The act of Congress divides appeals into two classes, giving to them very different rights. Where the party is diligent and prosecutes his writ of error without delay, the law gives a supersedeas. But if he is dilatory, the law is reluctant to deprive him of the benefit of an appeal, but subjects him to the risk of an execution. Thus the rights of creditor and debtor are both protected. But in order to prevent a vexatious and lingering suit and to supply an omission in the act, a rule of court compels the appellant to prosecute his suit under the penalty of dismissal by an application from the appellee. The appellant has his choice either to prosecute his appeal with or without the benefit of a supersedeas, and the act of Congress has made a clear distinction between these two modes. But the present motion is to take a case out of one of these classes and put it in the other.

The case of Stockton v. Bishop does not apply, because every step required by the act of Congress was taken in that case; and this Court not only can, but ought to, protect cases which are in regular progress towards it, according to all the forms of law.