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U.S. Supreme Court

Stafford v. Union Bank of Louisiana, 57 U.S. 16 How. 135 135 (1853)

Stafford v. Union Bank of Louisiana

57 U.S. (16 How.) 135


Where an appeal was taken from a decree in chancery, which decree was made by the court below during the sitting of this Court in term time, the appellant is allowed until the next term to file the record, and a motion to dismiss the appeal, made at the present term before the case has been regularly entered upon the docket cannot be entertained, nor can a motion to award a procedendo.

This Court, however, having a knowledge of the case, will express its views upon an important point of practice.

Where the appeal is intended to operate as a supersedeas, the security given in the appeal bond must be equal to the amount of the decree, as it is in the case of a judgment at common law.

The two facts -- namely first that the receiver appointed by the court below had given bond to a large amount and second that the persons to whom the property had been hired had given security for its safekeeping and delivery, do not affect the above result.

The security must notwithstanding be equal to the amount of the decree. A mode of relief suggested.

It will be seen by a reference to 53 U. S. 12 How. 327 that this case was formerly before this Court and that the decree of the court below dismissing the bill filed by the Union Bank was reversed.

In the execution of the mandate of this Court, the District Court of Texas passed a decree on the 25th of February, 1854, from which Stafford and wife appealed. Mr. Hale and Mr. Coxe, on behalf of the Union Bank, moved to dismiss the appeal for the following reasons:

Page 57 U. S. 136

This motion is made to dismiss the appeal in this cause, and to award a procedendo to the district court on the ground that the appeal bond given by the appellants is not sufficient to stay the execution of the decree.

The cause was originally commenced by the Union Bank of Louisiana against Josiah S. Stafford and wife in the District Court for the District of Texas for the purpose of foreclosing a mortgage on certain negro slaves. A decree having been rendered by the district court against the complainant dismissing the bill, an appeal was taken to this Court, and at the December term, 1851, the decree of the district court was reversed and the cause remanded with directions to that court to enter a decree in favor of the complainants. 53 U. S. 343. No term of the district court was held until July, 1853, when some objections being raised by the defendants to the proposed form of the decree, and to the report of the master on the receiver's accounts, the court took the whole matter under consideration until the next term. The objections to the master's reports having been waived, a final decree was rendered on the 25th of February, 1854, by which it was directed that the sums accruing from the hire of the slaves in the custody of the receiver pendente lite,@ amounting to $25,379.39, should be paid by the receiver to the complainant, and credited on the total amount due by the defendants, and that in case the defendants failed to pay over the balance remaining due after such credit, amounting to $39,877.13, on the first day of July, 1854, they should be foreclosed of their equity of redemption, and the master should seize and sell the mortgaged slaves at public auction, on the 3d of the same month, after giving three months' notice by advertisement of the time, place, and terms of sale, and should pay to the complainant out of the proceeds of the sale the foregoing sum of $39,877.13, in satisfaction of the debt.

It appears, then, as well by the decree as by the report of the master, which was confirmed, that on the first day of July, 1854, when the foreclosure was to take effect, the debt, interest, and costs due to the complainant would amount to $65,256.52.

On the 7th of March, 1854, the tenth day after the entry of the above decree, the defendants prayed an appeal, and the following order was made by the court:

"On this day came the defendants by their counsel and prayed an appeal to the next term of the Supreme Court of the United States, to be held in Washington City on the first Monday in December next, from the decree of the court rendered in favor of complainants against defendants, and to them it is granted upon condition that the defendants enter into a good

Page 57 U. S. 137

and sufficient bond with good and sufficient surety in the penal sum of ten thousand dollars, conditioned that they prosecute their appeal with effect, and answer all damages and costs if they fail to make their plea good. And thereupon the defendants, in open court, tendered a bond with L. C. Stanley, Patrick Perry, and William H. Clark, as sureties in the sum of ten thousand dollars, and the court having inspected the bond and being satisfied it is in conformity to law and the order of the Court herein and that the sureties are good and sufficient, it is now ordered that the bond be approved and filed. It is ordered to be entered that the bond of appeal taken and filed in this cause operates as a supersedeas to the decree of the court."

On the same day, the appeal bond referred to in the order was filed. The complainant objected to the bond being received to supersede or stay the decree, because the penalty was much less than the amount of the decree and was wholly insufficient, but this objection was overruled.

On the 11th of March, 1854, notice was given to the defendants, and their counsel that the present motion would be made, and this notice, with the acknowledgment of service, is herewith filed.

This motion is similar to that presented to this Court in the case of Catlett v. Brodie, 9 Wheat. 553. The Act of March 3, 1803, adopts in appeals the same rules that are applied to writs of error, The San Pedro, 2 Wheat. 132, and the 22d section of the Judiciary act provides that

"Every justice or judge signing a citation or writ of error as aforesaid shall take good and sufficient security that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs if he fails to make his plea good."

In the case above cited, it is said,

"It has been supposed at the argument that the act meant only to provide for such damages and costs as the court should adjudge for the delay. But our opinion is that this is not the true interpretation of the language. The word 'damages' is here used not as descriptive of the nature of the claim upon which the original judgment is founded, but as descriptive of the indemnity which the defendant is entitled to if the judgment is affirmed. Whatever losses he may sustain by the judgment's not being satisfied and paid after the affirmance, these are the damages which he has sustained and for which the bond ought to give good and sufficient security. Upon any suit brought on such bond, it follows of course that the obligors are at liberty to show that no damages have been sustained, or partial damages only, and for such amount only is the obligee entitled to judgment."

This language applies to the present case.

It was, however, urged with success in the district court

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that inasmuch as the receiver had given two bonds, each in the penalty of twenty thousand dollars, for the faithful discharge of his duties, and as the mortgaged slaves were in the possession of hirers, who had also given bonds in the joint penalty of eighty thousand dollars for the safekeeping and delivery of such slaves, the complainant had no right to require any further security from the defendants than sufficient to cover the special damages which might be imposed by this Court for delay. This conclusion is directly opposed to the reasoning of the court in Catlett v. Brodie. It is evident that notwithstanding the bonds given by the receiver and the hirers, the complainant is exposed by the appeal to the danger of losing the whole of the debt. The sureties on these bonds may become insolvent; the money in the hands of the receiver may be squandered; the slaves may die or run away. And in the language of the Court:

"Whatever losses the complainant may sustain, these are the damages which he has sustained and for which the bond ought to give good and sufficient security. Indeed, if the construction put upon the act by this Court is applicable in any case, it must be in all, and no special circumstances can constitute an exception."

It may be objected that this motion cannot be entertained at this time because the appeal has been taken to the next regular term. But neither the acts of Congress which regulate practice in this Court nor the rules adopted for its government imply that a motion of this kind cannot be made before the cause is required to be docketed. On the contrary, it is a well established principle that at the moment of the appeal, and by that act alone, the cause is virtually removed to this Court, and the jurisdiction thus vested may, of course, be exercised generally. Wylie v. Coxe, 14 How. 1. Every consideration would seem to induce the action of the court on motions of this character -- the urgency of the case -- the injury sustained by the appellee -- the delay of justice -- the danger of renewed and vexatious appeals, and in no instance can stronger reasons be offered than in this where the amount of the appeal bond is but ten thousand dollars and the debt is sixty-five thousand, and where the decree from which the new appeal is prayed is in exact conformity with the former mandate of this Court.

But if there would be any objection to the dismissal of the appeal at this time, there can be none to the award of a procedendo to the court below to enforce the decree by the issuance of an order of sale. The district court has directed the stay of all proceedings, and if such a result was not the lawful consequence of the appeal, this Court must be competent to require the execution of what is in fact nothing but its own decree.

Page 57 U. S. 139

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