The Saline County journal. [volume] (Salina, Kan.) 1871-1893, 1884-04-24
me STATUS OF The FOsrER CASE.

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the Foster case, put beyond question
what the final result Of that case vii
be. The point mainly urged by Fos
ter's attorneys and upon which they
most confidently relied, was thaI
the action Of quo WarrantO In thil
State was Of q criminal nature, enti
tllng the defendant to q trial accord
ing to the forms Of criminal procedure
Our supreme court held that il wa
a civil proceeding, and granted
the defendant q trial in accordance
with the code Of civil procedure. Thai
this view Is correct, has Just been de
cided by the q. s. supreme court In
the suit brought by the Attorney Gen
eral against the Union Pacific and
Kansas Pacific Railway companies.
That also was an action Of quo war.
rahIo, instituted In our supreme court,
10 oust the defendant from the exer-
else Of certain rights and powers
which they claimed.
The only other question presented
70 the supreme court, is as TO the right
Of the State to require Of q county at
toTney the duties prescribed by section
u Of the prOhlbitory law. But that
ls q proposition we'll settled by the
courts. aud admits Of no legal argu-
nlenf ai this day.
The motion to dismiss the writ Of
error was not heard by the court on
the 2lsi, as was desired by the State.
And the fact that Fosters attorneys
we're unwilling 10 take up q motion
tending 90 summarily 10 dispose Of
their case does NOT argue we'll for their
condolences In ils merits. The case
may nov Fend In the supreme court
until October
How dOes this leave the office Of
county attorney? There seems TO be
an opinion somewhat prevalent that
an order was made which has the ef-
feet 10 continue Foster In ONCE. Such
is not the fact.
The lawyers, the law books and
common sense present the following
line Of argument: Il isa well settled,
legal proposition that the judgment
Of a court takes effect from the time it
IL rendered. The formal entering Of
3 judgment Is uniformly held to be
nothing more than evidence Of what
the court has determined. This was
recognized by Fosters attorneys when
they applied TO the State supreme
court for a stay Of the effect Of the
judgment Of custer. The court re-
fused 10 grant q stay. Judgment was
rendered April l, 1874, declaring John
Foster ousted and removed from the
Office Of county attorney Of Saline
county. In High on Extraordinary
Legal Remedies, 'sectlon 1915, the rule
Is thus laid down: 1.-THE effect Of
Judgment Of custer upon the officer
himself, is to constitute q
full and complete amOtiOn from the
ONCE, and to render null and void all
pretended ofileial acts Of the officer AZ
ter such judgment, and the party thus
smoved is entirely divested Of all Of
fetal authority and excluded from
the Office as long as the judgment re-
mains Ia force.n In this case, the
Judgment was not only rendered, but
waR entered on the journal Of the court,
before any writ Of error was applied
for. As q matter Of law, the ofiee
was vacant after April lst.
But 1t is said a supersedeas was
granted by the Chief Justice Of the
o. s. supreme court. As matter Of
isct, as well as Of law, no supersedeas
was granted. By this term superse-
ieas, is meant nothing more than that
/ stay ofthe effect Of the judgment was
obtained. Ifas we have above stated,
he Judgment had done its work, by
'emoving Foster from office, before the
writ Of error.was applied for, there was
nothing to stay. And If Foster was
emoved from his Office, he is, as
tated by Mr.. High excluded from
he Office as long as the judgment re-
mains In force" No one claims that
he judgment does not remain in force
Until reversed by the supreme court Of
he United States Merely obtaining
writ Of error in nOwise affects the
Judgment. Neither is the legal effect
{ the judgment stayed by such appll-
alton. In Board Of Commissioners
:. German, 19 Wallace, 68l, the L. 3.
uprems court held that the superse-
eas "does not interfere with what
as already been done I" under 3 judg-
lent. That too was q case Of removal
{ an officer from Office, where Il was
laimed that the supersedeas restored
i'm. The court held that the officer
hus removed before supersedeas, re-
lained out Of Odice until the judg-
lent was reversed. In Doyle =. Wis
Onsin, 81 U. g., so, the same court
ED that the judgment Of the state
DuFt was not stayed until all was done
BAT the set Of congress required in
rder to perfect 4 supersedeas. By
sference 70 the act Of congress, Sec.
)O7 Of Revised Statutes, Il will be seen
hat must be done to so perfect It. II
rOvides, " The defendant may obtain
ich superssdeas by serving the writ
error, by lodging q copy thereof for
le adverse party In the clerks oflce
here the record remains, within sixty
ays, Sundays exclusive, after the
Of the judgmentcOmplained
I, and giving the security required
: law on the issuing Of the citation. (" .
4 Railroad Company v. Harris, I
lallaee, 574, the supreme court Of the
:. 8. held: The legislature has
en- ht to make the lodging Of q copy
the wit, q prerequisite to the
,eFetion Of the writ Is q supersedeas.
It's additional effect, &c q super
IDEAS, depends upon compliance with
Ie conditions imposed by the act
Te cannot dispense with that cOmpli-
ice 10 respect to lodging a copy for
le adverse party" All that the Judge l
N do In giving = supersedeas, ls to ]
Jprove the bond that IL presented a. {