# Union Telegraph Company v. Eyser

* related portals: Supreme Court of the United States.
* sister projects: Wikidata item.

## Dissenting Opinion

    Clifford
United States Supreme Court
86 U.S. 419
Union Telegraph Company v. Eyser
ON motion, by Mr. J. Hubley Ashton, for a supersedeas to the Supreme Court of Colorado Territory and the District Court in and for the county of Arapaho in that Territory. The case was thus:
The Judiciary Act of 1789, after enacting by its twenty-second section that final judgments in the Circuit Court may be examined and reversed, or affirmed in the Supreme Court, the citation being in such case signed by a judge of the Circuit Court or justice of the Supreme Court, and the adverse party having at least thirty days' notice, . . . continues:
'And every justice or judge signing a citation on any 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 fail to make his plea good.'
The next section, however, thus proceeds:
'SECTION 23. A writ of error, as aforesaid, shall be a supersedeas and stay of execution in cases only where the writ of error is served by a copy thereof being lodged in the clerk's office, where the record remains, within ten days (Sundays exclusive) after rendering the judgment complained of; until the expiration of which term of ten days executions shall not issue in any case where a writ of error may be a supersedeas.'
By an act of 1803, amendatory of the Judiciary Act, 'appeals' were made subject to the same rules, regulations, and restrictions as were prescribed in cases of writs of error.
Under these and other enactments, and under rules of court and judicial decisions, it had been long settled that when the writ of error was not a supersedeas and did not stay execution, the security (in practice a bond) required was to be only to such an amount as should be sufficient to answer all such costs, as upon an affirmance of the judgment or decree might be adjudged or decreed to the respondent in error; but that when the writ of error would operate as a supersedeas, the supersedeas bond in the Circuit Court must be taken with good and sufficient security that the plaintiff in error or appellant shall prosecute his writ of appeal to effect, and answer all damages and costs if he fail to make his plea good. And that such indemnity, where the judgment or decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgment or decree, including just damages for delay and costs and interest, on the appeal.
It had been long equally settled, when the writ of error was meant to operate as a supersedeas, that unless the complete security required was given within ten days, the writ could not be a supersedeas; the approving and filing of the supersedeas bond, or security, within ten days being as much obligatory as the service of the writ and lodging the copy within that time; these latter things, though so much matter of form, being made indispensable under the words of the twenty-third section of the Judiciary Act. The supersedeas bond, however, obviously is, to the party having the judgment whereon execution is stayed, the practically important part of the matter.
In this state of things, Congress, by the eleventh section of an act of June 1st, 1872, entitled 'An act to further the administration of justice,' thus enacted:
'Any party or person, desiring to have any judgment, decree, or order of any District or Circuit Court reviewed on writ of error or appeal, and to stay proceedings thereon during the pendency of such writ of error or appeal, may give the security required by law therefor within sixty days after the rendition of such judgment, decree, or order, or afterward, with the permission of a justice or judge of the said appellate court.'
But while this new enactment allowed the party desiring to have a judgment, & c., reviewed, to give the security required by law within sixty days, it said nothing about the old matter of lodging a copy of a writ of error 'in the clerk's office where the record remained,' nor indeed anything about making writs of error or appeals a supersedeas at all. It said simply that the party desiring to take a writ of error, &c., 'may give the security required by law therefor within sixty days,' &c. And the enactment thus contained obviously the germ of certain questions, as ex. gr.:
1st. Whether-without repealing any other provisions of the twenty-second and twenty-third sections of the old Judiciary Act, and the practice as settled by judicial decision upon it, and which required the security to be given within ten days-the new act meant only to enlarge the time for giving the security, leaving it still still obligatory on the party desiring to take a writ of error, to serve as formerly his writ, by lodging a copy 'in the clerk's office where the record remained, within ten days,' &c., and to file within that time the supersedeas bond.
2d. Whether it meant to supersede the entire provision of the old law, with regard to the time within which the acts necessary to be done by the party to entitle him to a stay of proceedings were required to be performed, requiring, however, the same old acts, including a service of the writ in the form prescribed, to be done. Or finally, and
3d. Whether it meant to dispense entirely with everything, including perhaps the provision that no execution shall issue within ten days, but the most practically important matter, the giving of the security required by law, and meant to enlarge the time for doing this until sixty days after the rendition of the judgment.
Immediately on the passage of this act, Mr. Phillips, confessedly the highest authority not judicial, in a matter of practice, in a new edition of his 'Statutory Jurisdiction and Practice of the Supreme Court of the United States,' called attention to the 'questions not without difficulty, suggested by a comparison of the two act:' the act, namely, of 1872, and the old Judiciary Act. And-while presenting in his book the act at large in order that before the interpretation of it should be passed upon and settled by the judgments of the court, the practitioner who was compelled to construe it, might 'decide for himself the questions suggested;' and acknowledging the difficulties and embarrassments necessarily attendant on the expression of his own opinion in advance as to the proper interpretation of its several sections-that acute and learned author inclined, in the absence of judicial decision on the new law, to think—
'That while the law has secured the right to stay proceedings by giving security in sixty days, the party is still bound to lodge his writ as required by the act of 1789, within ten days, and that in the absence of a supersedeas bond filed within that period the execution may issue. But that if within sixty days the bond is filed, then the judge may take such action for its stay or recall or give such order as the circumstances of the case may require to stay proceedings.'And this view, in his judgment, was 'fortified by the provision that this security may be given at any time after the sixty days with the permission of a judge of the appellate court.'
The idea which was at the foundation of the learned author's view obviously was, that as this court had frequently decided that the writ of error and the appeal were the means by which the Supreme Court was enabled to exercise the appellate power, matters connected with them could not be matters of form, but raised always a question of jurisdiction, as was shown by the numerous decisions dismissing writs or appeals for the least befect about either.
In this state of things Eyser had obtained a judgment in the District Court in and for the county of Arapaho, Colorado Territory, affirmed in the Supreme Court of the Territory, against the Union Telegraph Company, on the 6th of September, 1873.
On the 8th of October following-that is to say, twenty-eight days afterwards-the telegraph company took a writ of error, and no that day duly served a citation to the adverse party, properly signed by a judge, and filed in the office of the clerk of the court a sufficient supersedeas bond, conditioned and approved according to law.
The writ of error, it will thus be seen, was not sued out 'within ten days after rendering the judgment complained of,' and, of course, no copy of it was 'lodged in the clerk's office where the record remained,' nor any supersedeas bond then given.
In this state of things, the counsel of Eyser, the plaintiff in the case, assuming, as had been apparently the view of Mr. Phillips, that the act of 1872 only enlarged the time within which 'the security required by law' might be given, and that what was done by the other side was no supersedeas, applied to the court below for an execution upon his judgment, notwithstanding the supersedeas bond, &c., given by the other side.
Hereupon the telegraph company applied to this court, representing this last-mentioned fact, and representing further that they were afraid an execution would issue; and moved for a supersedeas to the said court commanding that further proceedings upon the judgment be stayed pending the writ of error.
Mr. Ashton, in support of his motion:
The question is new and of practical importance. We admit its difficulty, and that respect is due to the suggestion thrown out by an eminent writer at the bar to the contrary of the view on which our motion is founded. Professional opinion has been divided as to the meaning of the act, in which, without doubt, as finally passed, some things appear to be very curtly expressed.
But we submit that under the act of 1872, the writ of error having been sued out and served, and security having been given sufficient to cover the amount recovered, within sixty days after the rendition of the judgment, the plaintiff in error has a right to have a stay of proceedings on the judgment.
The act would seem to declare and provide that the party may 'stay proceedings' on the judgment by giving 'the security required by law therefor within sixty days after the rendition of the judgment.' It says that any party who desires to have any judgment reviewed on writ of error, and, during the pendency of such writ of error, to stay proceedings on such judgment, may obtain a stay of proceedings thereon, if he gives, within sixty days thereafter, security to cover the amount recovered.
In other words, the act would appear to repeal, by implication, so much of the twenty-third section of the act of 1789 as made the lodging of a copy of the writ within ten days a prerequisite to entitle the party to a stay of proceedings on the judgment. It is not necessary to contend that the act affects that other provision of the twenty-third section of the statute of 1789, which prohibits the issuing of an execution, in any case, until the expiration of ten days after rendering the judgment. That is a prohibition addressed to the court. It disables it from issuing execution within the time limited by the act. But the first provision of the twenty-third section, in regard to the operation of the writ as a supersedeas, was addressed to the party. It required him to lodge a copy of the writ within ten days, if he desired the writ to be a supersedeas.
The act of 1872, however, renders compliance with that condition no longer necessary, and gives the party a right to stay proceedings upon only one condition, namely, that he give a supersedeas bond within sixty days after the rendition of the judgment. If the requisite security is given within that period, and before execution issues, the writ has the effect of supersedeas. If execution issues before security is given, proceedings under it are subject to be stayed, if the party afterwards and within the sixty days, files the proper bond.
Any other construction of the act of 1872 sacrifices the substance to the form. The substantial thing, under the old law, was the bond. The lodging of a copy of the writ in the clerk's office was the merest form. It cannot be denied that the act of 1872 has repealed the requirement that the bond shall be filed within ten days. And Congress must have intended, when it authorized a party to give security within sixty days, to do away with the most formal and unimportant part of the whole procedure, namely, the lodging of a copy of the writ within ten days.
The eleventh section, we submit, was intended to supersede the entire provision of the old law, with regard to the time within which the acts necessary to be done by the party to entitle him to a stay of proceedings, were required to be performed.
No opposing counsel.
Mr. Justice SWAYNE delivered the opinion of the court.

## Notes

* ↑ Act of December 12th, 1794, 1 Stat. at Large, 404.
* ↑ Second edition, p. 107.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse