Page:Federal Reporter, 1st Series, Volume 4.djvu/636

 622 RDEBAL BEPOBTES. �acts. The statute seems to imply that they are, and to im- pose as a duty on the judge, when he signa the citation, that he shall then take good and Bufficient security. In practice the citation is usually prepared by the counsel and presented to the judge for his signature. In faet, it may be stated, I think, that this is the universal practice. In consequence of this, and because no citation was presented to the judge for signature, none -was signed in this case, and it -was not until the fourth day of September, 1880, when it 'vras ascer- tained that no citation had ever been actually signed or served, that the citation was presented to the judge for his signature, which was then affixed. The writ of error was returnable to the first day of the present October term, and the citation was issued and served on the plaintiff to appear on the first day of the October term of the supreme court tox this year, to answer the writ of error. �It will be seen from this statement that if the plaintiff is entitled to a writ of possession in this case, it will be in con- sequence of the technicality of a citation not having been prepared and presented to the judge and signed within 60 days after the judgment was entered. I do not feel inclined to sustain a technicality of this kind under the facts of this case. Undoubtedly it is competent for the supreme court to grant a supersedeas, even where none bas been allowed by the circuit court. But here ail that was necessary to make the surpersedeas effectuai was the citation and signature of the judge within 60 days after the judgment was rendered. It seems to me, for ail practical purposes, the plaintiff having been served with a citation before the October term of the supreme court, and notice thus being brought home to him of the writ of error and of the term to which it was return- able, and a bond having been executed, which was treated by the court as a supersedeas bond, it is sufEcient to entitle the defendant to take the judgment of the supreme court upon the merits of the case itself, before the plaintiff can cail on this court for a writ of possession. At any rate, if it be a matter of doubt, I prefer to take this view of the case in order that the plaintiff may avail himself of any error, if ����