Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-03-24


Our statutes recognize the writ of su
persedeas as an established remedy, bu
give no general definition of the writ no
description of its Office. But the onIl
cases in which supersedcas is provided
for, or mentioned, in the Code, except ii
sections 3,9SS and Abs, are cases il
which it is given as auxiliary to the sri
Of error, and the writ of certiorari, ant
in which its Office is merely to stay pro
ceedings under the judgment or decree
while the cause is pending in the appel
late court. And the proper office anC
function of the writ of supeTsedeas is un
doubleday merely TO stay proceedings
Bouvier's Law Dict
It is to be observed that sections 9, SO:
and d. l3 do not give the right to an ep-
peal from an interlocutory decree. Such an
appeal is allowed only in the cases men
toned IN section 3,157, which provides
that "The Chancellor or Circuit Judge
may, in his discretion, allow an appeal
from his decree in equity causes determin.
ing the principles involved, and ordering
an account, or a sale, or partition, before
the account is taken or the sale or par
tition is made; or he may allow such ap-
peal on overriding demurrer or he may
allow any party to appeal from decree
which settles his right, although the case
may not be disposed of as TO Others
But the snpersedeas provided for IN sec
tons 8, 1888 and 4, 5lS does not operate as
an appeal or writ of error, to bring the
cause into this Court. The cause remains
in the inferior Court, and the supersedeas,
when granted, merely suspends the opera
ton of the decree until final hearing, but
does not reverse it.
The distinction between reversing a
decree and merely superseding it must be
kept in mind. If the decree is one which
is of nature to be actively enforced
against the party, then it may be super
seded-proeeedings under it may be stay
ed. But such decree is suspended, not
reversed, by the supersedeas. And if the
decree, by order, be purely negative or
prohibitory in its character, it may be in
a proper proceeding reversed, but it is not
proper subject for the operation of
supersedeas; for there can be no proceed
| ings under it to be stayed.
If it had been intended that this Court
should have the jurisdiction to reverse
and set aside all interlocutOry DEGREES, the
right to grant an appeal or writ of error
to such DEGREES would have been conferred
in express terms. But no power is given
to US to grant appeals or writs of error to
interlocutory DEGREES. The right to grant
appeals from such decree is confined 70
the Circuit Judges and Chancellors, and
we are permitted only to grant the writ of
supersedeas to such DEGREES; and if par
ticular decree is of such nature that a
supersedeas can have no effect or opera
ton upon it, that does not authorize us to
90 further and reverse it, and thereby to
give to our writ of supersedeas the effect
of an appeal or of writ of error.
The authority TO grant supersedeas to
the execution of an interlocutory decree is
conferred upon a single Judge of the SUI
pTeme Court in vacation, as well as upon
the court.in term time, which is a further
vindication Of the legislative intent that
the authority TO supersede should not in
clude the power to reverse.
An injunction, in our practice, is pro-
hibitory writ, and its Office is to restrain,
and not to compel performance. 1t does
not authorize any act to be done, and
buNlE Ceiu bC nO BlOOCOOlDl IT, Ia
pable of being stayed by supersedeaS.
So of an order dissolving an injunction.
Such an order receives the prohibition i'm
posed by the injunction, but does not it.
self require, or authorize, the doing of
any act The injunction being removed,
the party may act at his peril, as if the
Injunction had not issued; but he
does not act under and by virtue of the
order dissolving the injunction. Neither
under the injunction, or the order dissolv-
ing it, is there any proceeding which can
be stayed; and therefore, though each of
these orders might be reversed, a super
sedeas can act on neither.
The terms of section 1913 of the Code,
which must be construed in connection
with section 1888, are convincing in
this case We are there authorized
to "grant supersedeas to the erecu-
ton of an interlocutory decree" dis
tinctly implying that the DEGREES
TO which the supersedeas may be ap-
piled, are DEGREES which in their nature
are susceptible of being ececuted by some
affirmative action or process of the Court.
The conclusion is, that we have not the
jurisdiction upon an application under
these statutes, to set aside an interlocutory
order granting a temporary injunction, or
an order dissolving such an Injunction.
If a case could be supposed in which a
writ, being in form an injunction, might
have in practical effect, an affirmative
action or operation, 50 as TO require us to
supersede it; the orders granting and dis
solving the injunction in the present case
are not of that nature.
The cross bill filed by Higgins and
Price is certainly in some respects a re-
markable one; but its merits, and the pro-
priety or validityof the Injunction granted
upon it, are not before US upon this ap-
plication. The injunction which the
Chancellor ordered to be issued upon it
was purely prohlbitory, and we cannot
supersede the prohibition or dissolve the
injunction upon the present petition.
The granting of temporary injunctions
is cOnfided to the discretion of the Chan
cellsr 1t is legal discretion to be con-
tIoIled by well settled rules, but discre-
ton which it is not permitted to US to re-
wise, upon an application of this kind
The power to grant preliminary injunc-
tons is one necessary TO the protection of
the citizen, but is in itself a tremendous
power which may easily be misused. 1t
involves the most delicate responsibility
and requires TO be exercised with the
greatest wisdom and caution. Undoubted-
ly cases may arise in which this power
may be misused. But the power must be
intrusted somewhere 1t is not committed
to us; and while the grant of every power
involves the nOSsibilitv of ifs misuse that
possibility is not a reason why we should
assume a jurisdiction which does not
rightfully belong TO US.
This Court has in several instances acted
upon petitions of this nature, and granted
superSedeas to orders of Chancellors grant
ing and dissolving injunctions. But ithas
always, so far as we are advised, been
done without objection being taken to the
jurisdiction, and we are satisfied that the
jurisdiction in cases of this kind cannotbe
assumed. The prayer of the petitioners
must be denied.
The order directing that the posses
sion of the road be restored TO Hug
gins and Price, was an order of a ma
ture TO be affirmatively and actively
executed; and a supersedeas might in
proper case issue to the execution
OF such an order But il appears
from the record presented TO us, that it
has been already executed or complied
with, and that Higgins and Price are in
possession of the road. A supersedeas to
this order would be Intellectual, and we
cannot give to a supersedeas the effect of
writ of restitution.
Gro ANDpEHUc Judra