Atchison, Topeka & Santa Fe Railroad v. Martin

OPINION ON MOTIONS. Fall, J, wkit of error, or p?acticelcicis¿)t> validity of. The motions filed in these causes, and argued, will be considered and disposed of together By the motion in 543, appellee seeks to have appeal dismissed and supersedeas set aside. By that in 535, defendant in error (also appellee) seeks to quash writ of error. There is but one record; in fact, but one cause. In the court below the defendant in error, or appellee, recovered judgment for $8,000, against the plaintiff in error, or appellant, from which judgment an appeal was asked and granted, bond for supersedeas being fixed at $16,000, which was executed and filed on the thirteenth of February, 1893, judgment having been rendered on the twenty-first of December, 1892. Argument has been quite exhaustive, and two opinions of the lower court upon the points in question have been filed. We are now called upon to decide upon these motions, as fixing a matter of practice under the acts of the territory, and particularly the act of 1891, commonly known as the practice act, By this act, clearly, the legislature intended that common law causes should be reviewed here by writ of error, and not by appeal. The provision is in express terms, and binding unless in conflict with the organic act or subsequent acts of congress, and we can find no such conflict. The legislature possessed the power to provide the method by which causes should be reviewed here, and exercised that power in clear and unmistakable terms. The appeal should be dismissed for the reason that writ of error is the proper method, and the motion to dismiss is sustained upon the first ground of the motion, as well as upon the second, fourth, and fifth grounds. FpLrovaionfdbondJ sufficiency o. We find that the bond filed in the court below was filed on the thirteenth day of February, 1893, and was approved by the judge of that court, also being indorsed “approved” by the 0£ jjjjjg court; 0n the twenty-third of March, 1893. The conditions of this bond show that it was intended to secure a supersedeas upon writ of error from this court, and the point made in the motion is that, being approved by the clerk here on March 23, 1893, ninety-two days after rendition of judgment, it was filed too late, under the statute fixing ninety days as the period within which bond shall be filed to secure stay of execution. Complaint is also made that the bond was treated by the court below as given in appeal, and fieri facias quashed upon this ground. The statute provides that a writ of error must be sued out within twelve months from date of judgment, and bond given within ninety days to secure supersedeas. In Ex parte French, 100 U. S. 4, the supreme court of the United States decides that a supersedeas and writ of error are two different writs. Clearly, it was the intention of the legislature to so provide, and this has been the practice here. In a pause where the writ of error was sued out, or supersedeas bond given, within ninety days, it has been the practice for the clerk of this court, unless an execution has issued below, simply to notify the clerk of the lower court, informally, that such bond has been filed, which was considered sufficient to prevent issuing of an execution. Where execution had issued then a writ" went to the sheriff below, in addition to the writ of error. This practice has doubtless been lax, and, together with the repeated changes in the law and rules of this court, standing under the territorial act as law, has caused confusion. In this case the defendant below, evidently confused as to the proper method of review, first sought it by appeal, and then by writ of error, finally adopting both, and filing a bond in the requisite sum, had either or both been proper, with the intention that the bond should be sufficient in either. The bond, as before said, states that it is for supersedeas in writ of error, and the only question is whether a substantial compliance was had with the statute; such compliance as would secure justice to both parties. Under the law, as it stood prior to 1891, the bond should have been filed in the court below as was first done. Under the latter act, it is to be approved by the clerk of this court, and impliedly filed with him, within ninety days. If this court held, having dismissed the appeal, that no substantial compliance with the statute had been made, and that there was no supersedeas, then the plaintiff ■ below could collect his money, while the case upon review might be reversed, the writ of error pending, and the defendant below be without recourse in event of final success. In case the defendant in error has his judgment affirmed, and the plaintiff is unable to pay the judgment, could the sureties on his bond plead that the same was no bond in this cause, and defeat the collection of the judgment? We think not. The filing of the bond below, conditioned that the plaintiff in error was “about to sue out a writ of error,” and its approval by the court, was an act of which the clerk there was compelled to take notice, and was certainly as binding upon him as would have been an informal letter from the clerk here. Further, there is nothing to show, except the approval of the clerk here, that the bond was not filed with him prior to the twenty-third day of March, although we presume that it was so filed on that date. However, we are not prepared to say that the approval of this bond by the clerk of this court was an absolute condition precedent to the issuing of a supersedeas. The citation issued, with writ of error, on the twenty-third, only two days after the ninety days had expired, while the supersedeas bond had been given, and was among the papers below, more than a month before. W& hold that upon the filing of this bond, in pursuance of the express intention of suing out a writ of error, a stay of execution should have been had; that the supersedeas should be considered as such in the writ of error cause, and not on the appeal; that the bond is security to defendant in error; and that while the correct practice is and should be to file the bond, and have same approved, and writ of supersedeas issued by the clerk of this court, within ninety days after judgment, still there has been a substantial compliance-with the statute, the provisions of which are sufficiently obscure to cause some confusion. The motion to quash the writ of error and set aside the supersedeas is denied. O’Brien, C. J., and Seeds and Freeman, JJ.,, concur.