Board of Commissioners v. Gorman

In this case, which came here on error to the Supreme Court of the Territory of Idaho, the board of commissioners of Boise County and B. T. Davis, plaintiffs in error, asked that a writ might issue from this court commanding the restoration of the said Davis to the office of assessor and tax collector of Boise County for the reason, as was alleged, that he had been ousted from that office by virtue of a writ issued upon the judgment in the court below, after the allowance of a writ of error to this court, which operated as a supersedeas.

The application was founded on the supposed effect which the eleventh section of an act of June 1st, 1872, entitled 'An act to further the administration of justice,' had upon certain provisions of the Judiciary Act.

This last-named act, it will be remembered, 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 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.'

The eleventh section of the act of 1872, above referred to as the basis of the application now made, thus enacts:

'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.'

The reader who has possessed himself of the case of Telegraph Company v. Eyser, reported at much length in a former part of this volume, will, of course, see that the case now reported presents a sort of complementary one to that, and disposes of one of the questions there mentioned, the third, as being involved in the new enactment.

Mr. H. E. Prickett, in support of the motion; Messrs. H. S. Foote and G. W. Paschal, contra.

The CHIEF JUSTICE delivered the opinion of the court, stating the facts of the case in it.