error will not be dismissed for failure to make him a party, where the citation has been served on him, and he was not a party to the judgment rendered in favor of the wife.

In Error to the Circuit Court of the United States for the Eastern District of Louisiana. On motion to dismiss.

C. W. Hornor and W. S. Benedict, for plaintiff in error. Edgar H. Farrar and Ernest B. Kruttschnitt, for defendant in error.

MILLER, J. A motion is made to dismiss this cause because Charles Lafitte, the husband of the defendant in error, is not named in the writ of error as a party to the proceedings. The judgment was in favor of his wife, Josephine, and he was a party authorizing her in the suit below, according to the forms of the Louisiana law, which require that the husband must be joined with the wife when she sues, whether he has any interest or not; and the plaintiff in error has served a citation on Lafitte, although he was not named in the writ of error. It may be doubtful whether Lafitte is a necessary party in this court, seeing he was not a party to the judgment. If for conformity's sake he ought to have been brought here to aid his wife in the writ of error, the citation to him is sufficient for that purpose. The motion to dismiss the case is overruled.


(April 16, 1888.)


A motion to vacate a supersedeas, or for an order declaring that the appeal-bond filed in the case does not operate as a supersedeas, will be denied as unnecessary, where the writ of error was not sued out or served within the time required by the statute in order that the bond operate as a supersedeas.

In Error to the Circuit Court of the United States for the Northern District of Illinois.

Motion by the defendants in error "to vacate the supersedeas in the above cause, or for an order declaring that the appeal-bond filed by appellant in said cause does not operate as a supersedeas, because the writ of error was not sued out or served within sixty days after the rendering of the judgment." John S. Cooper, for the motion. E. Walker, opposing.

MILLER, J. This is a motion to vacate what is called a supersedeas. The papers show that the writ was neither sued out nor served within 60 days after the rendition of the judgment which is the subject of the writ of error. It follows, as a matter of course, that the writ cannot operate as a supersedeas, and we know of no motion that is necessary or proper in this court on that subject. Writs of supersedeas do not issue unless it may become necessary from some peculiar circumstances. The statute declares that when, within 60 days, the plaintiff sues out his writ of error, files it with the clerk of the proper court, and then gives a bond within a certain time mentioned by the statute, that the bond, if approved for that purpose by the judge who grants the citation and the writ of error, shall operate as a supersedeas. It is a matter of law whether it operates as a supersedeas. There is no evidence here of any proceeding to collect a debt which has been disregarded. At all events, there is no occasion for a supersedeas. The motion is denied.

(October 17, 1887.)

CRIMINAL LAW-ERROR TO UNITED STATES SUPREME COURT-ESCAPE PENDING HEARING. Where, pending a writ of error, the accused escapes, the case will be set aside, and ordered to be left off the docket until directions to the contrary, unless the accused is brought within the jurisdiction of the court below during the term.

Error to the Supreme Court of the State of Nebraska. Indictment for murder. For opinion of state court, see 24 N. W. Rep. 390. Charles O. Wheedon and C. E. Magoon, for plaintiff in error. William Leese, for defendant in error.

WAITE, C. J. It appearing that during the pendency of this writ the plaintiff in error has escaped, and is not now within the control of the court below, either actually, by being in custody, or constructively, by being out on bail, it is ordered that the submission of the cause be set aside, and that unless the plaintiff in error is brought or comes within the jurisdiction and under the control of the court below on or before the last day of this term the cause be thereafter left off the docket until directions to the contrary. Smith v. U. S., 94 U. S. 97.

[blocks in formation]

Upon suggestion that the parties have compromised the suit, and stipulated that the plaintiff in error shall dismiss it, the court will, after notice to show cause, order its dismissal.

Error to the Circuit Court of the United States for the Northern District of Texas.

S. Robertson, for plaintiff in error. M. L. Crawford, for defendant in


WAITE, C. J. It having been suggested that this cause has been compromised, and the debt paid, and that a stipulation has been entered into by the parties to the effect that the plaintiffs in error shall dismiss the suit, it is ordered that unless the plaintiffs in error show cause to the contrary, on or before the fourth Monday in November, the writ be dismissed. The clerk will serve a copy of this order at once on the counsel for the plaintiffs in error of record, through the mail.

(December 5, 1887.)

WAITE, C. J. This cause is dismissed under the order made October 17, 1887; no cause having been shown to the contrary, as then required. The clerk will preserve as part of the record the evidence of service of the order of October 17th.


(April 9, 1888.)


Upon suggestion to the court that one party to a suit has sold out to the other, the case will be dismissed, where, after notice and hearing, it is evident that the case is no longer prosecuted in good faith.

Error to the Circuit Court of the United States for the Middie District of Alabama.

Gaylord B. Clark, for plaintiff in error. W. A. Gunter, for defendant in error, made no appearance.

WAITE, C. J. It having been suggested to us that there is no longer any real controversy between the parties to this suit about the matters therein originally involved, and that the Western Union Telegraph Company is at this time practically both plaintiff and defendant, it is ordered that this writ of error be dismissed, unless the plaintiff in error show cause to the contrary on or before the 17th day of February. The clerk will serve a copy of this order at once on the counsel of record for the plaintiff in error, through the mail.

(February 20, 1888.)

THE CHIEF JUSTICE made the following announcement:

The showing in this case against the order to dismiss does not satisfy us that there exists any longer a real controversy in the suit. It is conceded that the Western Union Telegraph Company is now occupying the line under a contract with the railroad company which gives it an exclusive right in that behalf, and it is not denied that some arrangement has been made with the Southern Telegraph Company by which that company no longer is a contestant in the cause. Time is given the railroad company until the 19th day of March next to make a further showing in the premises, if it desires to do so. (April 9, 1888.)

MILLER, J. It was suggested by a letter from counsel employed on one side of this suit that his party had sold out the interest which it had to the other party, who was prosecuting it now, and was dominus litis on both sides. A ruling was made some time ago, before the death of the late chief justice, in effect that there was sufficient evidence to that effect to require the case to be dismissed, unless the side now prosecuting it for decision would show satisfactory evidence that it was a bona fide suit. Two attempts have been made, and we are agreed in the opinion that they are both failures, and that the original order should now be carried out, dismissing the case on the grounds set forth in the opinion of the chief justice, delivered at the time.

(February 20, 1888.)


The supreme court will not take action to cause the judgment of a state court to be reversed in obedience to its mandate, where it does not appear that the petitioner has ever applied to the state court to carry the mandate into effect.

On motion.

The case of Royall v. State of Virginia, 7 Sup. Ct. Rep. 826, having been decided in favor of the plaintiff, William L. Royall, he presented to this court the following petition:

"To the Honorable Judges of the Supreme Court of the United States: Your petitioner, William L. Royall, would respectfully show that in a prosecution against him in the hustings court of the city of Richmond, by the commonwealth of Virginia, he was convicted and sentenced to pay a fine of fifty dollars. Your petitioner applied to the supreme court of appeals of said state for a writ of error to reverse this judgment, but that court refused to award the same. Your petitioner then applied to his honorable court for a writ of error, which was awarded, and the judgment of the supreme court of appeals of Virginia was reversed at the last term of this court, and this court's mandate was sent to said supreme court of appeals, directing it to reverse the judgment of said hustings court. Your petitioner placed the mandate of this court in the hands of Hon. L. L. LEWIS, president of the supreme court of appeals of the state of Virginia, in the month of June, 1887, and prayed that such proceedings might be taken as would cause the judgment of said hustings court to be reversed. Nevertheless, up to this day, said supreme court of appeals of the state of Virginia has taken no action in the matter, and the judgment and sentence of said hustings court of the city of Richmond against your petitioner remain in full force and unreversed. Your petitioner prays, therefore, that this honorable court will take such action in the premises as will cause said judgment to be reversed. The said supreme court of appeals and the said hustings court are both in session at this time.


Leigh Robinson, for petitioner.

WAITE, C. J. This motion is denied. It does not appear that the petitioner has ever applied to the supreme court of appeals of Virginia to carry the mandate of this court into effect.

(May 14, 1888.)


Where, upon a stipulation for a settlement by the parties to an action, others are allowed to intervene upon filing bonds for future costs, the court will, upon the determination of the cause against such intervenors, and upon their failure to pay the costs, order an attachment therefor against them and their sureties.

On Motion for an Attachment to Enforce the Payment of Costs. This action, brought originally by Thomas Leitensdorfer against William Craig, concerning a large tract of land in Colorado, having been appealed by defendant Craig from a decree of the circuit court, was, by a stipulation of counsel, filed in this supreme court, May 4, 1885, to be settled by a consent decree, reversing the judgment below, and dismissing the bill, without costs. Whereupon Thomas J Allen and Mrs. Leann S. King, claiming to have acquired title to the premises in dispute, or to some part thereof, since the commencement of the suit, were, by order of the court, allowed to intervene upon filing bonds, with sureties, for the costs that should accrue and be adjudged against the appellee. The cause having been determined against the intervenors, (Downs v. Hubbard, ante, 85,) the appellant made application to the court for judgment to be entered on the bonds, and attachment to issue against the parties and their sureties.

BF Butler and O. D. Barrett, for appellant. Charles W. Hornor and John Paul Jones, for intervenors.

MILLER, J. An application was made in this case last Monday for a compulsory process against Mrs. Leann S. King and Thomas J. Allen, and sureties, who signed two bonds for costs in this case. The circumstances of the case are about these: Craig and Leitensdorfer had been litigating for an immense tract of land in Colorado, and the case had come here by appeal in behalf of Craig against the judgment of the circuit court. Shortly after it got here, Craig made an arrangement with Leitensdorfer, or with his executor, (for he died during the progress of this long litigation,) by which the case was to be closed up by a consent decree in favor of Craig, or his representatives. He presented that agreement to this court, and asked to have it enforced. At that time, Mrs. King and Mr. Allen interposed by their counsel, and protested against this dismissal, saying that they had bought Leitensdorfer's claim, or parts of it, before he had made this arrangement, and to enforce it would prejudice them. That motion was heard in this court long enough to have settled a common case. The court said to these parties: "If each of you will enter into bonds to pay all costs from this forward to be adjudged against you or the appellee, you shall be permitted to intervene and be heard." They were heard, and they made all the defense that was made against Craig's claim. In October last this court decided the case in favor of Craig, and against Leitensdorfer's representatives. Ante, 85. The costs were taxed by the clerk, and these parties have neglected to pay them. We are of opinion that they must pay them, and we are of opinion that this court has power, and it is its duty, to enforce the payment without remitting the payees in these bonds to another suit in some other court. We therefore make an order that an attachment issue against Mrs. King and her sureties, and Mr. Allen and his sureties, to compel payment of the amount of the taxed v.8s.c.-88

costs, unless they do pay it before the last day of this term. This is a new question, and a more elaborate opinion may be submitted before the end of the term; but this order is made now because the parties ought to have an opportunity to pay, and we make the order now that they pay the costs, and that a writ of attachment issue if they do not pay before the end of this term. It is proper to observe that, if the money is not paid, the writ of attachment will be returnable to the next term of the court.

(April 16, 1888.)


Where a circuit court dismisses an action of replevin for want of jurisdictional amount, and afterwards orders a return of the property, and renders judgment for damages, the United States supreme court has no power, by mandamus, to compel a reversal of such judgment and order; the amount in controversy being too small for a writ of error.

Application for Writ of Mandamus.

The petitioners alleged that on March 20, 1887, in ignorance of the act of March 3, 1887, increasing the limit of jurisdiction of the circuit court to $2,000, they commenced an action of replevin in the circuit court of the United States for the Eastern district of Michigan for property of the value of $653.38, which action was dismissed for want of jurisdiction; that afterwards, on motion of defendants, the court ordered a return of the property replevied, against the objection of plaintiffs, and, a return having been waived by defendants, ordered the damages to be assessed for the value of the property, irrespective of plaintiffs' title to the same, and overruled plaintiffs' motion to set aside the judgment for the damages so assessed. Wherefore they asked for a writ of mandamus to compel the court to vacate the order for a return of the property and for the assessment of its value, and for a writ of prohibition restraining said court from further proceedings in said cause. Levi T. Griffin, for petitioners.

MILLER, J. A petition on the part of H. S. Burdett and others, asking for a mandamus against the judge of the circuit court of the United States for the Eastern district of Michigan, has been presented to us. The case arises out of an action of replevin in which the circuit court decided that it had no jurisdiction. A proceeding was then had to get damages for the taking of the goods in replevin, which the court entertained, and rendered judgment for the damages. The amount in controversy is too small to come to this court by writ of error, and we are asked, by the writ of mandamus, to direct the judge of that court to set aside the judgement which he rendered. Whether there was error in that matter or not, we do not think that we have any power, by writ of mandamus, to compel the judge of that court to reverse his own judgment.

(April 16, 1888.)


Though Rev. St. U. S. § 999, provides that the adverse party shall have at least 30 days' notice, a writ of error will not be dismissed on the ground that the citation was issued and made returnable less than 30 days after the writ was granted.

In Error to the Supreme Court of the Territory of New Mexico. to dismiss.

1 Former opinion, 6 Pac. Rep. 202.

On motion

« ForrigeFortsett »