Cook v. Burnley (78 U.S. 672)

THE judgment which is above reported as having been affirmed, was so affirmed at the December Term, 1867. A mandate accordingly issued to the court below, reciting the judgment of this court, and directing 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 writ of error notwithstanding.' This mandate was presented to the Circuit Court for the Eastern District of Texas, and ordered to be recorded; and Porter, who was now the surviving plaintiff, with the executors of his deceased co-plaintiff Burnley, applied to the court for writs of possession. But as the records of the court below had been destroyed by fire during the late war, affidavit was made of that fact, and a carefully certified copy of the transcript in this court was presented, with a motion to have it received in lieu of the original. The plaintiffs also presented a sworn copy of the original petition, and asked to have it established as the petition in the cause. The defendant objected to the allowance of this motion, and assigned several grounds of objection of a technical character. But the Circuit Court ordered that the motion be sustained, and that a writ of possession issue. The defendants then gave notice that they would prosecute 'a writ of error there, from;' i. e. from the order, and the court fixed the amount of the bond at $7000, and 'allowed thirty days for the filing' of the same. This order is entered December 18, 1869.

No bond having been filed or copy of writ of error lodged in the clerk's office up to January 1, 1870, the plaintiffs directed the issue of a writ of possession, which was issued; whereupon the defendant, Cook, applied by petition to the district judge, in chambers, at Austin, July 23, 1870, for a writ of supersedeas; and upon his petition an order was made for such writ, enjoining the marshal from executing the writ of possession, a copy of which order was served on the attorneys of plaintiffs. The allegation in Cook's petition, upon which this supersedeas was granted, was that he had sued out a writ of error and executed a bond, which was approved 'in due and usual form in such cases,' so that the order of the district judge must be understood as affirming this position.

The writ of error, and a copy of the bond and citation, were filed or 'lodged' with the clerk of the Circuit Court on January 7, 1870, or twenty days after the judgment was rendered, but appeared to have been allowed and approved by the district judge on the 28th of December, 1869.

Mr. W. G. Hale, for himself, and Mr. W. B. Ballinger, now moved:

I. To dismiss the writ of error in said cause for the following causes, apparent in said record:1st. The said writ of error is not prosecuted from any final judgment in this cause.

2d. That it is brought to reverse an order enforcing a mandate of this court, and not to reverse any judgment, order, or proceeding of the Circuit Court, from which a writ of error can lawfully be prosecuted to this court.

II. In case said writ of error be not dismissed, then that the court set aside and discharge the supersedeas to the writ of possession issued from said Circuit Court, or direct said Circuit Court so to do.

Mr. Thomas Wilson, contra.

Mr. Justice CLIFFORD delivered the opinion of the court.