The Idaho world. [volume] (Idaho City, Idaho Territory) 1864-1918, 1874-07-18
UNITED STATES SUPREME COURT.
No. 7l7.-ocroBER TERM.

ONAAGO 0AAA6O OV6h1m VVO14s
No. 717.--ocroBER TERM.
The Board Of Commissioners Of Boise County
and Ben. T, Davis, Plaintiffs in Error, VS..
/ John German, in error to the Supreme Court
of the Territory of Idaho.
WHEN A WRIT OF ERROR OPERATES AS A sUPEnsFDEAs
FILING BOND.
Under the provisions Of the act Of 1872. upon the
hling of the bond within sixty days from the time
OF the entry Of the Judgment. snpersedess may be
obtained Such supersedeas, however, stays pro-
ceedingsa only from the ilng Of the bond. 1t pre-
vents further proceedings under an execution which
has been issued. but does not interfere with what
has already been done.-Ed. Legal News.
| Chief Justice Waite delivered the opinion
Of the Court
The plaintiffs in error ask that writ may
issue from this court commanding the restora
tion of Ben. I. Davis to the Office of assessor and
tax collector Of Boise county. for the reason,
as is alleged, that he has been ousted from that
office by virtue Ut a writ issued upon the judg-
ment in the court below, after the allowance
Of writ of error to this court, which
operated as supersedeas. In order
that writ OF error may operate as superse-
deas, it is necessary that a copy of the writ
should be lodged for the adverse party in the
| Clerks office where the record remains and
that the bond approved by the judge allowing
the writ should alsob filed there. (O'Dowd rs.
Russell, Ia Wall. 405 Execution cannot is
sue upon the judgment until the expiration of
ten days. exclusive OF Sundays. from the en-
try thereof II the writ of error and bond
are flied before the expiration of the ten days,
no execution can issue so long as the case in
error remains undisposed of. After the expi-
ration Of the ten days an execution may issue.
Notwithstanding this. under the provisions Of
the act of 1872 ia Stat. at Large. 1913, sec H..
upon the filing Of the bond within sixty days
from the time of the entry of the judgment
supersedeas may be obtained. Such n super
srd-as. however, stays proceedings only from
the filing of the bond. 1t prevents further
proceeding under an execution which has been
| issued. but does not interfere with what has
already been done.
| In this case the record shows that the judg-
men, was actually entered on the goth day Of
January The entry made was read In
court on the morning Of the 2Ist and the rec
ord signed by the judges. but it was ordered to
be made on the both, The ten days, exclu.
sive of sundays prescribed by the act of Con-
eress for delay of execution, expired on Sat
nr,ay. the 3lst of January. On Monday. the
I'd Of February. ma jority at the court direct
ed the Clerk 20 issue writ of restitution To
carry the Judgment into effect On the same
/
and signed the necessary citation. 4 copy OF
the writ of error was filed in the clerks office
| and the writ and citation actually served upon
the defendant in error before the clerk had
completed th,. preparation of the writ of res
tituton After h. had completed its prepara-
ton he handed it tn the attorney of the defend
ant in error. who had previously been served
with the citation. No supersedeas bond was
| filed with the clerk on the I'd, and no notice
was given that any had been approved On
the morning of the I'd of February the writ of
restitution was served and Davis removed from
his office. After this and on the same day. n
bond approved by the chief Justice was left in
the clerks office by him. 1t nowhere appears
from the record when this bond was approved.
1t bears date the Cd Of February, but there is no
certificate of the time when the approval was
entered 1t is certain. however, that it was
not filed in the clerks office until after service
| of the writ of restitution. The writ Of error
operated as s,lpersedeas only from such til-
| ing. That was too late to prevent the removal
of Mr.. Davis from his office in pursuance of the
authority Of the Judgment; and we cannot
now order him to be restored
/ II ia claimed, however. that as the record OF
the Judgment was not signed by the judges OF
the court until the 2lst. the ten days did not
commence to run until that date, and we are
referred to the ease Of Silsby rs. Foote. 20
How. 900, as establishing such rule. In that
case the decision was actually rendered on the
18th Of August but the decree was special in
its terms, and was not settled or signed by the
iudee until the 18th Of December Before any
entry could be made it was necessary that the
Judge should pass upon it's form. 1t was there
! fore, quite right to delay the appeal until the
exact character Of the decree could be known.
Here. however. the form Of the Judgment
was settled upon the announcement OF the de-
cision. and it was entered accordingly
Bat the writ Of restitution was not served
until after the expiration Of ten days from the
2lst, and it does not appear that it was actual
llv delivered to the Sheriff for service before
that time.-There is nothing t" prevent the
preparation by the clerk Of an execution be-
fore the expiration Of the ten days. 1t cannot
be issued before. and it is not issued until it is
placed beyond the control Of the clerk himself.
So long as it remains with him. or under his
control. it is like any other paper in his office.
We think the motion must be denied, and IN
accordance with the request Of the parties
made at the argument. the case is dismissed.
SHAMrruL-The Beccher lTilton scandal is
being stirred up from the bottom. Mr.. Tilton
renews his old charge against Mr.. Beecher'