Puslapio vaizdai
PDF
„ePub“

and Assessment, when confirmed by the court, | losses which will accrue to the owner of propshall be "final and conclusive," only meant that erty when taken for public use, and thus the no appeal should lie from the order of confirma- compensation to be made to him is in the nature tion to a higher court, and that it did not pre- of an inquest on the part of the State, and is clude an application to the court to vacate the necessarily under her control. It is her duty to order for mistake, irregularity or fraud in the see that the estimates made are just, not merely proceedings; that the Supreme Court had power to the individual whose property is taken, but to to hear such motions in ordinary cases of judg- the public which is to pay for it. And she can ments and orders in suits there pending, and to that end vacate or authorize the vacation of that no reason existed against the possession or any inquest taken by her direction, to ascertain exercise of the power in cases of this character. particular facts for her guidance, where the proThe provision in question, said the Court of Ap-ceeding has been irregularly or fraudulently conpeals, "plainly never intended to give a vested ducted, or in which error has intervened, and interest in a mistake and irregularity or fraud, order a new inquest, provided such methods of whereby important rights of property were ac- procedure be observed as will secure a fair hearquired or lost. It had reference simply to an ing from the parties interested in the property. appeal upon the merits, and is satisfied with Nor do we perceive how this power of the State that. All judgments are liable to be set aside can be affected by the fact that she makes the for fraud, mistake or irregularity, and a vested finding of the commissioners upon the inquest interest therein is subject to that liability." subject to the approval of one of her courts. 203*] *The Supreme Court held that the Act That is but one of the modes which she may of 1871 was constitutional. The Court of Ap- adopt to prevent error and imposition in the peals held that, independent of the Act and proceedings. There is certainly nothing in the without passing upon its validity, the Supreme fact that an appeal is not allowed from the acCourt had authority to set aside the order upon tion of the court in such cases, which precludes the grounds stated. a resort to other methods for the correction of the finding where irregularity, mistake or fraud has intervened.

If the views of either of these courts be correct, they dispose of the questions in this case. And the construction of the statute of the State by the Court of Appeals, and its decision as to the powers of the Supreme Court of the State to correct or set aside its own judgments, upon application within reasonable time, for mistake, irregularity or fraud, are conclusive upon us. There is, therefore, no case presented in which it can be justly contended that a contract has been impaired. It may be doubted whether a judgment not founded upon an agreement, express or implied, is a contract within the mean ing of the constitutional prohibition. It is sometimes called by text writers a contract of record, because it establishes a legal obligation to pay the amount recovered and, by fiction of law, where there is a legal obligation to pay, a promise to pay is implied. It is upon this principle, says Chitty, that an action in form ex contractu will lie on a judgment of a court of record. Chit. Cont., Perk. ed., 87. But it is not perceived how this fiction can convert the result of a proceeding, not founded upon an agreement, express or implied, but upon a transaction wanting the assent of the parties, into a contract within the meaning of the clause of the Federal Constitution which forbids any legislation impairing its obligation. The purpose of the constitutional prohibition was the maintenance of good faith in the stipulations of parties against any state interference. If no assent be given to a transaction, no faith is pledged in respect to it, and there would seem in such case to be no room for the operation of the prohibition.

In the proceeding to condemn the property of the plaintiff for a public street, there was nothing in the nature of a contract between him and the City. The State, in virtue of her 204*] *right of eminent domain, had authorized the City to take his property for a public purpose, upon making to him just compensation. All that the Constitution or justice required was that a just compensation should be made to him, and his property would then be taken whether or not he assented to the measure. The proceeding to ascertain the benefits or

Until the property is actually taken, and the compensation is made or provided, the power of the State over the matter is not ended. Any declaration in the statute that the title will vest at a particular time, must be construed in subordination to the Constitution, which requires, except in cases of emergency admitting of no delay, the payment of the compensation, or provision for its payment, to precede the taking, or, at least, to be concurrent with it. The Statute of 1818 would also seem so far to modify the Act of 1813 as to require a formal [*205 acceptance of the land on the part of the corporation before the title can vest. Strange v. Rub. Co., 1 Sweeny, 86, 87. Sweeny, 86, 87.

The objection to the Act of 1871, that it impairs the vested rights of the plaintiff, and is, therefore, repugnant to the Constitution of the said upon the first objection. There is no such State, is already disposed of by what we have vested right in a judgment, in the party in whose favor it is rendered, as to preclude its reexamination and vacation in the ordinary modes provided by law, even though an appeal from it may not be allowed; and the award of the commissioners, even then approved by the court, possesses no greater sanctity. Judgment affirmed.

RODERICK R. BUTLER, Plff. in Err.,

v.

UNITED STATES.

(See S. C., 21 Wall., 272-275.)

Surety in bond, when estopped by act of his principal in filling blanks in the bond.

NOTE Conditional execution of bond under parol agreement that it shall not take effect until others have signed it- see note, 45 L. R. A. 321. Bonds, effect of filling blanks after execution.

Where the printed form of a bond, with its blank spaces, was signed by a surety and delivered to the principal, with authority to fill the blanks and perfect the instrument, as a bond to secure his faithful service in the office of Collector of Internal Rev enue, and to present it, when perfected, to the proper officer of the Government for approval and acceptance, such surety, when sued on the bond, is, in law and equity, estopped from claiming, as against the Government, the benefit of his private instructions to such principal, or a private agreement with him as to the penalty to be inserted in the bond, or as to other sureties.

[No. 192.]

Submitted Feb. 12, 1875. Decided Feb. 22,1875.

I

N ERROR to the circuit Court of the United States for the Eastern District of Tennessee. This was an action of debt in the court below, on a joint and several internal revenue bond executed by Benjamin B. Emery, as principal, and by Roderick R. Butler, Ethan A. Sawyer and William Choppin as sureties, in the sum of $15,000. Butler defended on the ground that, at the time he signed and affixed his seal to the bond, it was a mere printed form, with blank spaces for the names, dates and amounts to be inserted therein; and that the blanks were not filled, and there was no signature thereto, except Emery's; that Emery promised, if Butler would sign the bond, he would fill up the blanks with the sum of $4,000, and would procure two additional securities in the District of Columbia, each of whom was to be worth $5,000; and that the bond was delivered to Emery with the understanding and agreement that the bond otherwise was not to be binding on the defendant, but was to be returned to him; that the defendant never afterward ratified or acknowledged the validity of the bond; that the other sureties did not reside in the District of Columbia, and were wholly insolvent and worthless; and that Emery obtained the signature by false and fraudulent representations. The circuit judge ruled that this was no defense to the action; a verdict was taken for the plaintiffs, and the defendant excepted and brought this writ of error.

Messrs. S. Shellabarger, H. Maynard and J. M. Wilson, for plaintiff in error.

Mr. C. H. Hill, Asst. Atty-Gen., for defend

ant in error.

from Dair v. U. S., 16 Wall., 1; 21 L. ed., 491. The printed form, with its blank spaces, was signed by Butler and delivered to Emery, with authority to fill the blanks and perfect the instrument as a bond to secure his faithful service in the office of Collector of Internal Revenue. He was also authorized to present it, when perfected, to the proper officer of the Government for approval and acceptance. If accepted, it was expected that he would at *once [*275 be permitted to enter upon the performance of the duties of the office to which it referred.

It is true that, according to the plea, this authority was accompanied by certain private understandings between the parties, intended to limit its operations, but it was apparently unqualified. Every blank space in the form was open. To all appearances, any sum that should be required by the Government might be designated as the penalty, and the names of any persons signing as co-sureties might be inserted in the space left for that purpose. It was easy to have limited this authority by filling the blanks and the filling of any one was a limitation to that extent. By inserting, in the appropriate places, the amount of the penalty or the names of the sureties or their residences, Butler could have taken away from Emery the power to bind him otherwise than as thus specified. This, however, he did not do. Instead, he relied upon the good faith of Emery, and clothed him with apparent power to fill all the blanks in the paper signed, in such appropriate manner as might be necessary to convert it into a bond that would be accepted by the Government as security for the performance of his contemplated official duties. It is not pretended that the acts of Emery are beyond the scope of his apparent authority. The bond was accepted in the belief that it had been properly executed. There is no claim that the officer who accepted it had any notice of the private agreements. He acted in good faith, and the question now is, which of two innocent parties shall suffer. The doctrine of Dair's case is that it must be Butler, because he confided in

Emery and the Government did not. He is, in law and equity, estopped by his acts from claim

Mr. Chief Justice Waite delivered the opin-ing, as against the Government, the benefit of his private instructions to his agent. The judgment is affirmed.

ion of the court:

We cannot distinguish this case in principle

A bond executed in blank by obligor and filled up afterwards by his express parol authority is valid. The authority to fill the blanks, is also authority to redeliver it. Gibbs v. Frost, 4 Ala., 720; Newton v. Beard, 6 W. Va., 110; Belle v. Keefe, 13 La. Ann., 524: Spencer v. Buchanan, Wright, 583; Sigfried v. Levan, 6 Serg. & R., 308, 9 Am. Dec.. 427 Costen's Appeal, 13 Pa. St., 296: Wiley v. Moor. 17 Serg. & R., 440; Beary v. Haines, 4 Whart., 20 Inhab., etc., v. Huntress, 53 Me., 89.

V.

Bond with obligee blank is a nullity. Agent authorized by parol cannot fill in name of obligee. Upton v. Archer. 41 Cal., 85, 10 Am. Rep., 266; Preston v. Hull, 23 Gratt., 600, 14 Am. Rep., 153; U. S. v. Nelson, 2 Brock. 64; contra; Field Stagg. 52 Mo., 534, 14 Am. Rep., 435; Vose v. Dolan, 108 Mass., 155, 11 Am. Rep., 331; Van Etta v. Evenson, 28 Wis. 33 9 Am. Rep., 486; Edelin v. Saunders, 8 Md., 118; Vliet v. Camp, 13 Wis., 198. A paper signed and sealed in blank and afterwards filled up under a verbal authority to do so, is void unless afterwards delivered or acknowledged

and adopted by the person so signing it. Ayers v. Harness, 1 Ohio. 368; Perminter v. McDaniel, Hill So. Car., 267; Wynne v. Governor, 1 Yerg., 149: Byers v. McClanahan, 6 Gill. & J., 250; contra; Wiley v. Moor, 17 Serg. & R., 438; Williams v. Crutcher, 5 How. (Miss.) 71, 35 Am. Dec. 422.

Bond signed before name of obligee or amount is inserted cannot be recovered on, although payments have been made on it. Barden v. Southerland, 7 N. C., 528 Preston v. Hall, 12 Am. L. Reg., 699; Squire v. Whitton, 1 H. L. Cas., 333.

Such a bond is not a deed nor can it be made such by the filling of the blank, by an agent authorized by parol. Davenport v. Sleight, 2 Dev. & B., 381, 31 Am. Dec.. 420; Graham v. Holt, 3 Ired. L., 300, 40 Am. Dec., 408.

A surety who signs an official bond while there are blanks for other sureties, and delivers it in that condition to the principal obligor, who fills up the blanks, will be held liable. Wright v. Harris, 31 Iowa, 272; Webb v. Baird, 27 Ind., 368; The State v. Pepper, 31 Ind., 76.

It is true the record sued upon in this case does show that defendant was not served with process, but it also shows his voluntary appear

NATHAN B. HILL, as Administrator of Sam- ance by an attorney. If this appearance was

uel Hill, Plff. in Err.,

v.

CYRUS P. MENDENHALL.

(See S. C., 21 Wall., 453-456.)

authorized, it is as effective for the purposes of jurisdiction as an actual service of summons. When an attorney of a court of record appears in an action for one of the parties, his authority, in the absence of any proof to the contrary,

Appearance gives jurisdiction-attorney's au- will be presumed. A record which shows such

thority-inadmissible evidence.

1. Where the record of a judgment sued upon shows that defendant was not served with process, but also shows his voluntary appearance by an attorney; if this appearance was authorized, it is as effective for the purposes of jurisdiction as an actual service of summons.

2. A record which shows such an appearance will bind the party until it is proven that the attorney acted without authority. 3. Extrinsic evidence to contradict the record by showing that the appearance by the attorney was unauthorized, is not admissible under a plea of nul tiel record. A defense requiring evidence to contradict the record must be formally pleaded.

[No. 127.]

Submitted Jan. 7, 1875, Decided Feb. 22, 1875.

IN ERROR to the Circuit Court of the United

an appearance will bind the party until it is proven that the attorney acted without authority.

Since the cases of Thompson v. Whitman, 18 Wall., 457, 21 L. ed., 897, and Knowles v. Gas Co. ante, 70, it may be considered as settled in this court, that when a judgment rendered in one State is sued upon in another, the defendant may contradict the record to the extent of showing that, in point of fact, the court rendering the judgment did not have jurisdiction of his perIf such showing is made, the action mus fail, because a judgment obtained under such circumstances has no effect outside of the State

son.

in which it is rendered.

But if it appears on the face of the record that

the court did have jurisdiction, extrin. [*455

States for the Eastern District of North Car- sic evidence to contradict it is not admissible unolina.

[blocks in formation]

This was an action in the Circuit Court of the United States for the Eastern District of North Carolina, upon a judgment in one of the courts of record in the State of Minnesota. The plea was nul tiel record alone. Upon the trial of the issue made by this plea, the plaintiff introduced in evidence an exemplification of the record sued This record showed upon its face that the defendant was, at the time that action was

upon.

commenced, a resident of the State of North Carolina; that the summons issued had been returned, "Not served"; that thereupon, by order of the court, service was made by publication, and that after such publication the defendant appeared by attorney, filed an answer verified by an agent, and voluntarily submitted himself to the jurisdiction of the court.

The bill of exceptions shows that, after in454*] troducing the *record, the plaintiff called a witness, who gave evidence tending to prove that the party who verified the answer was at the time an agent of the defendant, for the

transaction of his business in Minnesota. The defendant then testified in his own behalf, and in substance denied the agency.

The circuit court found that there was such a record as was sued upon; but because it did not appear in the exemplification or from the evidence, that summons had been served upon the defendant, gave judgment in this action in his favor. This ruling of the circuit court is now assigned for error.

NOTE. Unauthorized appearance of attorney; effect of see note, 21 L. R. A. 848.

Effect of appearance by counsel or attorney in an action; unauthorized appearance; what is an appearance-see note, 12 L. ed. U. S. 387.

der a plea of nul tiel record. The office of pleading is to inform the court and the parties of the facts in issue; the court, that it may declare the law, and the parties, that they may know what to meet by their proof. Nul tiel record puts in isand is met by the production of the record itself sue only the fact of the existence of the record, valid upon its face, or an exemplification duly authenticated under the Act of Congress. A defense requiring evidence to contradict the record must necessarily admit that the record exists as effect. It should, therefore, be formally pleaded, a matter of fact, and seek relief by avoiding its in order that the facts upon which it is predicated may be admitted or put in issue. Under the common law system of pleading this would be done by a special plea. The equivalent of such a plea is required under any system. The precise form in which the statement should be made will depend upon the practice of the court in which it is to be used, but it must be made in some form. Defects appearing on the face of the record may be taken advantage of upon its production under a plea of nul tiel record; but those which require extrinsic evidence to make them apparent, must be formally alleged before they can be proven. This we believe to be in accordance with the practice of all courts in which such defenses have been allowed, and it is certainly the logical deduction from the eleBimeler v.. mentary principals of pleading. Dawson, 4 Scam., 538; Harrod v. Barretto, 2 Hall., 302; Shumway v. Stillman, 6 Wend.. 447 ; · Starbuck v. Murray, 5 Wend., 148; Price v. Hickok, 39 Vt., 292; Judkins v. Ins. Co.. 37 N. H., 482; Holt v. Alloway, 2 Blackf., 108; Moulin v. Ins. Co. 4 Zab., 222; Gilman v. Lewis, 15 Me., 452; Aldrich v. Kinney, 4 Conn., 380. In Knowles v. Gas Co., the issue was directly made by an averment of jurisdiction in the complaint and a denial in the answer, and in Thompson v. Whitman by plea and replication.

It follows that, upon the pleadings in this case, judgment should have been given for the plaintiff after proof of the *record, show- [*456

ing as it did jurisdiction of the defendant by ren has also another more tedious method of redress; sch of his appearance by attorney. As both par- and in all cases where there is no other remedy. ties, however, submitted evidence without objec- 3 Bl. Com., 110; Perkins v. Fourniquet, 14 tion upon the question of the authority of the How., 328; U. S. v. Peters, 5 Cranch, 115; Stafattorney so to appear, we should have held them ford v. Union Bank of La., 17 How., 275, 15 L. to a waiver of the proper pleadings to presented. 101; Ex Parte Dubuque & Pacific R. R. Co., that issue if it appeared affirmatively that this 1 Wall., 69, 17 L. ed. 514. evidence had been considered and passed upon by the court below Such, however, is not the case. Judgment was given for the defendant upon the sole ground that it did not appear from the record or the evidence that summons had been served. This was error if the defendant had in fact voluntarily appeared. The record upon its face furnished evidence of such an appearance. The court did not find that this evidence was not in accordance with the facts.

The judgment of the Circuit Court is, therefore, reversed and the cause remanded, with instructions to award a venire de novo, and permit such amendments to the pleadings as may be necessary to present fairly for trial the real issues between the parties.

Assuming that the judgment entered in the Circuit Court in November, 1870, was a judg ment against the sureties as well as against the principals, it is clear that, after the mandate from the Supreme Court affirming the judgment, the Circuit Court had no power to revise the judgment.

buque & Pacific R. R. Co. supra.
Sibbald v. U. S., 12 Pet., 488; Ex parte Du-

Thus, if a case, after having been before the Supreme Court, comes before it again, the objection cannot be taken that the court had no jurisdiction over the first appeal.

Washington Bridge Co. v. Stewart, 3 How., 413; Whyte v. Gibbes, 20 How., 541, 15 L. ed., 1016; Withenbury v. U. S., 5 Wall., 819, 18 L. ed., 613; see also Ex parte Morris v. Johnson, I Wall., 605, 19 L. ed., 799.

The judgment against the sureties rendered

Ex Parte In the Matter of CHARLES SAW by the Circuit Court, in November, 1870, was a final judgment against them, and not a conditional judgment.

YER et al., Petitioners.

(8ee S. C., 21 Wall., 235-240.) Mandamus to Circuit Court-not issued to control its discretion-revocation of order.

1. Where this court, by its mandate, has required the Circuit Court to proceed with the execution of its decree, if the court refuses to proceed, this court may, by mandamus, compel it to do so, but cannot control its discretion while proceeding. 2. Where, in an admiralty case, the Circuit Court upon appeal from the district court affirmed its decree, and further ordered that unless an appeal was taken from the decree, judgment should be entered and execution issued against the sureties of the appellant and an appeal was taken to this court, and the judgment there affirmed, upon the return of the mandate of this court with directions that the Circuit Court should proceed as right and justice should require, the Circuit Court was left free to determine for itself what was thus required.

3. If, in its opinion, the order in respect to the judgment and execution against the sureties shou'd be carried into effect, it might so adjudge; but if, upon further consideration, right and justice should seem to require a revocation of that order, there was nothing in the mandate to prevent it from so deciding.

4. This court will not issue a mandamus to require the Circuit Court to enter such decree of judgment and execution against the sureties.

[No. 5. Original.]

If the words, "unless an appeal be taken from this decree within the time prescribed by law," be stricken out, it is clear that the judgment is final against the sureties and against the principals. The insertion of these words can make no difference in the effect of the decree. The decree simply states in words what is implie by the law, and may be stricken out as surplusage. The expression of what is tacitly implied adds nothing to the force of the implied condition or reservation. Expressio eorum quæ tacité insunt nihil operatur. Broom, Leg. Max., 4th ed., 518.

If these words were out, execution could not issue in case of an appeal, and the judgment would be suspended. The effect of the decree is to order judgment against the principals and sureties. And they thereupon had the right of appeal. The sureties did not appeal, and they are precluded. The principals did appeal, though not from this decree; and the judgment was affirmed. All that remained for the Circuit Court to do, was to issue execution in accordance with the judgment.

Mr. E. F. Hodges, for respondents:
The record does not present a case relievable

Submitted Nov. 20, 1874. Decided Feb. 17, 1875. by a writ of mandamus; the duty of the Circuit

Decided Mar. 1, 1875.

PETITION for mandamus.

The case is fully stated by the court. Messrs. John Lathrop and C. H. Hill, for petitioners:

Mandamus is an appropriate remedy in this

[blocks in formation]

Court being, as to Lee and Davis, judicial and not ministerial.

The Circuit Court had never rendered any judgment against them prior to the return of the mandate, and the only judgment against date from this court when, for the first time, them was rendered upon the return of the manconsidered. the question of their relations to the cause waз

principal respondents they could not appeal The prior judgment against the from. It adjusted matters petween libelants and libelees only, and they had no right to intervene. When the libellants claimed a judgment against them as sureties or stipulators according to the rules of the admiralty, then for the first time the court passed upon their relations to the cause; investigated the medium through which the libellants claimed,

to fix upon them the responsibilities of stipulator and then pronounced that no such relations existed and no responsibilities attached. The judgment upon the stipulation must necessarily be distinct from the judgment in the principal cause. For although the sureties in the stipulation make themselves quasi parties to the suit, and submit to the jurisdiction of the court; yet, they are not relat ed to the cause of action, and have no privity with the other party. The stipulation is not an agreement with the other party but with the court, and is always under the control of the court. When judgment has been rendered in the cause it is inter partes, the sureties have no other relation to it than that they are bound through their stipulation by its terms but it is through their stipulation and not as parties to the cause of action. Consequently, while judgment passes against the original party to the cause, by virtue of his relation to the other party and the cause of action, it is rendered against the surety only by virtue of his engagement with the court, expressed in the stipulation. In the one case, it is a judgment resting upon the cause of action; in the other, it is a judgment resting upon the stipulation.

Lane v. Townsend, 1 Ware, 296.

The refusal of the court below to render judgment against Lee and Lavis, was a judgment in the cause final in its terms and effect, and could have been appealed from. A mandamus will not lie in a case remedial by appeal or writ of error.

877.

Ex parte Newman, 14 Wall., 153, 20 L. ed., Should it be urged that the judgment in the principal cause takes with it a judgment against the stipulators, we reply: this is true only to a limited extent. That judgment is binding upon the stipulators as to the amount, but it does not settle or relate to the fact of stipulation. After that judgment has been rendered and execution is solicited, whether without an appeal or after an appeal affirmance and mandate returned, the inferior court then examines its judgment roll and judicially determines: 1. Whether any person appears thereon to be liable as a stipulator. 2. Upon hearing after notice, whether he is in fact a stipu

lator; and, 3. For what sum, if any. Each of these steps demands the exercise of judicial discretion, which this court did not intend by

its mandate to forbid or limit.

Neither Lee nor Davis was a party to the appeal, and the paper by which the libelants seek to discharge them as stipulators was not before this court, nor was its validity passed upon at the hearing. They can be in no other way subjected to the mandate than as they are found by the court below, upon judicial inquiry, to be guarantors or stipulators for the payment of the judgment therein commanded to be executed.

In re Howard, 9 Wall., 175, 19 L. ed., 634. Mr. Chief Justice Waite delivered the opinion of the court:

Upon an appeal from the district court sitting in admiralty, a decree was entered by the circuit court adjudging that the appellees recover of the appellants the sum of $7,970.05, and then proceeding as follows: "And it is further ordered, adjudged and decreed, that

|

unless an appeal be taken from this decree within the time prescribed by law, a summary judgment therefor be entered in favor of the said libelant, appellees, and against James Lee, Jr., and J. Wade Davis, sureties on said appeal, in the sum of $10,000, the amount of their stipulations by them given on said appeal, and that said appellees have execution therefor to satisfy said decree."

Within the time prescribed by law an appeal was taken to this court, where the decree of the Circuit Court was affirmed, and the cause remanded with instructions to the effect "That such execution and proceedings be had in said cause as according to right and justice, and the laws of the United States, ought to be had, the said appeal notwithstanding." Upon the filing of this mandate, the libelants moved the Circuit Court for a decree charging the sureties upon the stipulation, and ordering execution against them. This motion the circuit judge refused to grant, and instead, ordered that the sureties show cause, if any they had, why such execution should not issue. Afterwards, upon cause shown, the court being of the opinion that the sureties were not liable upon the alleged stipulation, refused to decree or award execution against them.

The libelants now move this court for man

damus requiring the Circuit Court to cause such decree and order to be entered.

By the mandate already issued, we have required the Circuit Court to proceed with the

execution of its decree in such manner as right to proceed under that order we may, by manand justice shall require. If the court refuses damus, compel it to do so, but we have no power to control its discretion while proceeding. A superior court may by mandamus set the machinery of an inferior court in motion, but when that has been done its power under that form of proceeding is at an end. The inferior court is supreme within its own jurisdiction so long as it is acting.

The question then is, as to the power of the Circuit Court *under the mandate from [*239 this court to determine whether execution should or should not issue against the sureties in the stipulation.

It is not denied that the liability of the prin

cipal respondents was fixed by the decree of the Circuit Court. from that court all power over that part of the The appeal took away

decree.

Upon the affirmance in this court that liability was conclusively settled, and the mandate left nothing for the Circuit Court but to proceed in the appropriate manner for the collection of the money found due.

But the sureties occupy a different position No decree was entered against them before the appeal. The order was that a judgment be entered of an appeal was not taken. The appeal was taken and, therefore, this order never became operative. The case then stood in the Circuit Court upon the return of the mandate without a decree against the sureties; and until such decree was entered there could be no execution as to them. It is true that if the appeal had not been taken the requisite decree might have been obtained; but it is equally true that until a decree is actually entered the court retains the power to withhold it.

At the time of the appeal, therefore, the Cir

« AnkstesnisTęsti »