# Ex parte Sawyer

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United States Supreme Court
88 U.S. 235
Ex parte Sawyer
ON petition for mandamus to the circuit judge for the New York Circuit. The case was thus:
Sawyer and others libelled Oakman in admiralty in the District Court of Massachusetts and got a decree against him. Oakman appealed to the Circuit Court for that district, but the presiding justice of it, having been counsel in the cause, or otherwise disqualified, it was transferred, under the act of Congress providing for such cases, to the Circuit Court for New York circuit.
After this transfer, an order was made in the Circuit Court of New York that the decree of the District Court be carried into effect, unless the appellant gave stipulation by security of himself and two sureties for the payment of all damages and costs on the appeal to the said Circuit Court, and in this court, in the sum of $10,000.
Hereupon Oakman, without its being seen or approved by the court, filed ex parte a certificate, intended as 'stipulations,' signed by the commissioner of the Massachusetts circuit, and certifying that Oakman, as principal, and James Lee, Jr., and Wade Davis, as sureties, were bound in $10,000 that Oakman should pay all damages and costs which might be awarded against him in the suit. The paper was not signed by either the principal or the sureties, and herein was not in conformity to the rules about stipulations of the New York circuit.
On subsequently hearing the appeal, the Circuit Court for New York affirmed the decree of the District Court, and adjudged that the appellees recover of the appellant the sum of $7970. The decree then proceeded 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 libellants, appellees, and against James Lee, Jr., and Wade Davis (sureties on appeal from the District Court in the sum of $10,000, the amount of their stipulations by them given on said appeal), and that the 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 libellants 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, for the first time, observed the peculiar form of the paper purporting to be the stipulations, and that it was not executed according to its rules. It accordingly held that the sureties were not liable upon the alleged stipulation, and refused to decree or award execution against them.
The libellants now moved this court for a mandamus requiring the Circuit Court to cause such decree and order to be entered.
Mr. John Lathrop, in support of the motion.
1. The judgment against the sureties rendered by the Circuit Court was a final judgment against them, and not a conditional one. If it was not final against the sureties, it was not against the principal. Both, so far as the judgment is concerned, stand on the same footing. If it was not a final judgment, the Supreme Court had no jurisdiction. The insertion of the words 'unless an appeal be taken from this decree within the time prescribed by law' makes no difference in the effect of the decree. 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 principal did appeal, though not from this decree; and the judgment was affirmed. All that remained for the Circuit Court to do, after receiving the mandate, was to issue execution in accordance with the judgment; nothing was left to its judgment or discretion.
[The learned counsel then went into an argument to show that in the admiralty stipulations need not be signed, citing precedents from Mariott's Formularies; and that the act of the commissioner of the Federal court for Massachusetts was to be respected in all other Federal courts, and, whether or not, that Lee and Davis, having filed the paper in the New York court, were estopped to set up its irregularity.]
Mr. E. F. Hodges, contra.
The CHIEF JUSTICE delivered the opinion of the court.

## Notes

* ↑ Act of February 28th, 1835; 5 Stat. at Large, 322.
* ↑ Pages 218, 219, 347, 348, 354.
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).
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