O'Hara v. Pennsylvania Railroad

The opinion of the court was delivered, January 3, 1859, by Strong, J. — If this case were properly before us, it would not be difficult to show, both that the District Court had authority to make the order which is assigned for error, and that it was properly made. The case is not, however, properly before us. The court below entered judgment upon the verdict in favor of the plaintiff, and at the same time, ordered that all proceedings on the judgment should be stayed, and that no writ of habere facias possessionem should issue thereon, until the final determination of a pending proceeding, to assess damages for taking the land recovered, “ subject to such further order of the court as the justice of the case may then require.” It is not doubted, that a writ of error will lie to remove an order to stay an execution indefinitely upon a-judgment, for such an order is a final termination of the proceeding between the parties to the cause. But until final judgment, a writ of error will not lie ; 11 Co. 40; Logan v. Jennings, 4 Rawle, 355; Pesh v. M‘Grrew, 21 Wend. 667; Mayberry v. Thompson, 5 How. 121. Until then, it is powerless to remove the record of the inferior court. 2 Ld. Raymond, 1179, 1531. The order to stay execution, which is complained of in this case, is not an,indefinite denial of execution. It is only an interlocutory order, expressly subject to such further order of the court as the justice of the ease may require. It is,’therefore, not final. It contemplates further action by the court, and of course, is not removable by writ of error.- The writ of error is quashed.