Ex parte Warden/Opinion of the Court

The petitioners in this case show that they entered into a stipulation in the sum of $70,000 on behalf of Samuel Jackson, master and claimant of the steam-ship Belgenland, in a suit for collision in the district court of the United States for the eastern district of Pennsylvania, conditioned in the following words:

It is not stated in the petition that the stipulation was executed under the provisions of section 941 of the Revised Statutes, but for the purposes of this application we assume it was, there being no representation to the contrary. That section provides in express terms for a return of the stipulation to the court, and that 'judgment thereon against both principal and sureties may be recovered at the time of rendering the decree in the original cause.' It would seem as though nothing more was needed to show the power of the court to include the stipulators in the original decree. Under section 1007 of the Revised Statutes, no execution can issue until the expiration of 10 days after the entry of the decree. In this respect these decrees are like others. An appeal with supersedeas stays execution against the stipulators as well as the principal. Therefore, there is nothing in the decree inconsistent with the provisions in the stipulation in respect to the time when the execution may issue.

It is no doubt within the power of the court to postpone a decree against the sureties until after the time for appeal by the principal has expired, and then to proceed only on notice. Such is the practice in some of the circuits, but we can find nothing in the statute which makes this imperative. In the case of The New Orleans, 17 Blatchf. 216, to which our attention has been directed by the counsel for the petitioners, the proceeding was against the sureties for the claimants, on their appeal from the district court to the circuit court, and the court refused to enter the judgment on such a bond until after the time for perfecting an appeal to this court had expired. That was an entirely different question from the one presented here upon a stipulation and entered into under section 941.

It is unnecessary to consider whether in law the decree is a lien on the real estate of the stipulators after appeal. Our inquiry is not as to the effect of the decree, but as to the jurisdiction of the court to enter it. If there was jurisdiction, any error that may have been committed cannot be corrected by mandamus.

As, upon the showing made by the petitioners, we are clearly of opinion they are not entitled to the relief they ask, the alternative writ is denied.