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U.S. Supreme Court

Ex Parte Milwaukee Railroad Company, 72 U.S. 5 Wall. 188 188 (1866)

Ex Parte Milwaukee Railroad Company

72 U.S. (5 Wall.) 188




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 mandamus 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.

4. Hence where, after an appeal to this Court, the judge below refused to approve a bond for a supersedeas, because all the sureties were nonresidents of the district, this Court (though not agreeing with such judge in the opinion that mere nonresidence within the district was a sufficient reason for rejecting a bond 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.

The Circuit Court for the District of Wisconsin having rendered a decree in favor of J. T. Soutter, survivor &c., against the La Crosse & Milwaukee Railroad Company and the Milwaukee & 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. For 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 endorsement:

"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 nonresidents of the district, for this reason this bond is not approved for a supersedeas."


"District Judge"

The record of the case having been brought into this Court on the appeal taken, the appellants now petitioned the Court for a mandamus to compel the district judge to approve the bond and allow a supersedeas or for such other relief in the premises as this Court could give.

MR. JUSTICE MILLER delivered the opinion of the Court.

Although this Court does not concur in the opinion of the district judge that the fact of the nonresidence of the sureties

Page 72 U. S. 190

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 case where the circumstances justify it, as we think they do in the present instance. Hardeman v. Anderson, * 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.

* 45 U. S. 4 How. 640.

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