O'Dowd v. Russell

ON motion to dismiss a writ of error to the Supreme Court of the State of Georgia.

Walker, Jones, and O'Dowd were sued in the Superior Court of Richmond County, Georgia, upon a bond given by Walker, as principal, and Jones and O'Dowd, as sureties, for the faithful discharge by Walker of his duties as vendue-master in the city of Augusta.

The breach alleged was that Walker, having received, as vendue-master, certain goods for sale, and having sold them and received the proceeds in his capacity as vendue-master, failed to account. The defendants pleaded Walker's discharge under the bankrupt act, and the plea was sustained; but the sureties were held liable under the 33d section of that act, notwithstanding the discharge of their principal. Two writs of error were prosecuted upon this judgment to the Supreme Court of Georgia. One by Jones and O'Dowd to reverse the judgment against them, upon the ground that the discharge of Walker was a bar to the suit against them as sureties; and one by the plaintiff in the action, upon the ground that Walker could not avail himself of his discharge, the debt having been created by his defalcation as a public officer, and while acting in a fiduciary capacity.

The judgment of the Superior Court in favor of Walker was, on the 31st of October, 1871, reversed by the Supreme Court, and the judgment against the sureties on the same day affirmed. To reverse the judgment of the Supreme Court, O'Dowd prosecuted a writ of error. He had given written notice to both Walker and Jones of his intention to carry the case to this court, and requested their co-operation; but each declined to carry on the controversy longer.

The writ (dated by mistake, October 16th, 1871), issued November 10th, 1871, returnable to the first Monday of December following, and was served by filing in the clerk's office, and the case on that day removed by service of the writ. The bond was dated on that same day, but when it was allowed, or when it was filed, did not appear; nor did it appear that any copy was lodged in the office of the clerk of the Supreme Court for the defendant in error.

Mr. H. M. Hilliard, for the defendant in error, now moved to dismiss the case on these, among other grounds—

1st. Because it had been prosecuted by O'Dowd alone, and without summons and severance of Walker and Jones.

2d. Because the judgment was not 'final' within the meaning of the Judiciary Act, which gives a writ of error only on judgments which are 'final.'

3d. Because the writ, the bond, the citation, and the copy of the writ of error for the defendants, were not seasonably served or filed.

As to this last ground assigned for dismissing the writ, the reader will, of course, remember that the 23d section of the Judiciary Act enacts that—

'A writ of error shall be a supersedeas and a stay of execution in cases only where the writ of error is served by a copy thereof being lodged for the adverse party in the clerk's office where the record remains, within ten days, Sundays exclusive, after rendering the judgment and passing the decree complained of.'

Mr. J. P. Carr, contra.

The CHIEF JUSTICE delivered the opinion of the court.