Clapper v. Bailey

Per Curiam. Motion to set aside an execution and sale. Motion sustained. Facts: There was an appeal from a judgment below to the Supreme Court. The judgment was affirmed; but before a session of the Circuit Court after the affirmance, and, of course, without any order of that Court to enter [161] the opinion of the Supreme Court upon the record, the clerk, in vacation, issued an execution upon the judgment. W. March, for the appellant. J. S. Buckles, for the appellee. The appeal-bond having been filed, stayed proceedings in the Circuit Court for three years, unless the stay was sooner removed by order of the Supreme Court. We think the clerk of the Circuit Court had no authority to act in the premises during that time, if he would have afterwards, till ordered by the Circuit Court. It was held under'former statutes that there could be no action in the Circuit Court in a case thus appealed to the Supreme Court, till the opinion of the Supreme Court was spread upon the record of the Circuit Court by order of that Court. See 2 It. S. p. 8, note. The certificate from this Court is to the Court, not to the clerk, below. There may be modifications directed to be made in a judgment that is affirmed. The Court below must judge of this. See 2 R. S. p. 161, §§ 569 to 573 inclusive. The judgment is affirmed with costs.