Welch v. Jones

COLLIER, C. J. The writ of supersedeas is not addressed to a sheriff or other officer, to be served on him who holds the process, the action of which is to be suspended ; but it is directed to the latter, informing him that the execution or other mandate has been superseded. It is a mere formal notice, and derives its legal efficacy from the order under which it issued; and is not indispensable to give effect to the order. Accordingly it has been held, that if a sheriff takes the goods of a person in execution after notice of the allowance of a writ of error, which operated as a supersedeas, he is liable to be punished for a contempt; and if an attorney take out execution after such notice, he is liable in the same manner. In Morrison, et ux. v. Wright, 7 Port. R. 67, the questiqn was, whether knowledge that a writ of restitution issued up-a judgment in an unlawful detainer had been regularly superseded would render its execution void, and make the officer a trespasser, this court said, “ It is true that the process in the sheriff’s hands, became inoperative the moment it was superseded by the performance of the conditions imposed by the fiat of the judge, and all proceedings under it aftewards were void. But it by no means follows that the sheriff was a trespasser; any act of his, under, or by virtue of the process, after notice of the supersedeas would constitute him a trespasser ; but the notice to have this effect must be actual, not constructive notice — and the placing in the hands of his deputy, the writ superseding the former process, will not of itself, be such notice as the law requires.” 662 We cannot very well distinguish between an injunction and a supersedeas, as to the manner of affecting a party with notice of them. In respect to the former, it has been said that it is not necessary to constitute a breach, that the injunction should be actually served. If a party have, by himself or his attorney, notice in any other way, of the fact of an injunction having been granted, though it should not be regular notice, it is a breach of the injunction to disobey it. [Drewry on Inj. 399.] Here a supersedeas in due form, as we must presume, was handed by the defendant in the executions to the constable. This we think was sufficient to inform him that further action upon them had been arrested, and in disobeying the super tedeas he subjected himself to the consequences resulting therefrom. If it is not genuine or authoritative it devolves upon him to show it.' Notices, either initiatory, or issuing in the progress of a cause, were not, in practice, served by a sheriff, until the passage of the act which confers such power ; and when such notices were served by him, he verified by oath, as any other individual is required to do, the fact of service. The statute in relation to notices, is perhaps considered as merely cumulative, and does not take from private persons the authority to serve them — it certainly is not exclusive as it respects a supersedeas. If the supersedeas had been handed to the constable by one of the by-standers, according to' the view we have taken, the service would have been good, and being delivered by the defendant in their presence, and the delivery verified, by their testimony at the trial'of this cause, we think it quite sufficient to bring home to the constable notice of the supersedeas, previous to the sale. The ruling of the circuit court is consequently erroneous — its judgment is reversed, and the cause remanded.