Opinion
No. 1283.
Submitted April 9, 1888. Decided April 16, 1888.
The court, for reasons stated in its opinion, denies a motion to vacate a supersedeas or to make an order that the appeal bond filed in the case does not operate as a supersedeas.
Mr. John S. Cooper for the motion.
Mr. E. Walker opposing.
THE defendants in error made the following motion:
"And now come the defendants in error in the above cause, by John S. Cooper, their attorney and counsel, and move the court to vacate the supersedeas in the above cause, or for an order declaring that the appeal bond filed by appellant in said cause does not operate as a supersedeas; because the writ of error was not sued out or served within sixty days after the rendering of the judgment entered and complained of in said cause.
"JOHN S. COOPER, " Attorney and Counsel for Defendants in Error."
This is a motion to vacate what is called a supersedeas. The papers show that the writ was neither sued out or served within sixty days after the rendition of the judgment which is the subject of the writ of error: It follows as a matter of course that the writ cannot operate as a supersedeas, and we know of no motion that is necessary or proper in this court on that subject. Writs of supersedeas do not issue, unless it may become necessary from some peculiar circumstances. The statute declares that, when within sixty days, the plaintiff sues out his writ of error, files it with the clerk of the proper court, and then gives a bond within a certain time mentioned by the statute, that the bond, if approved for that purpose by the judge who grants the citation and the writ of error, shall operate as a supersedeas. It is a matter of law whether it operates as a supersedeas.
There is no evidence here of any proceeding to collect a debt which has been disregarded. At all events there is no occasion for a supersedeas.
The motion is denied.