Howard v. Hess

Campbell, C. J. This was a suit upon what was claimed by plaintiff to be a stay bond to prevent execution during writ of error. The questions all arise on the finding. ■ The court below found that a writ of error was issued from this Court to the circuit court for the county of Saginaw upon a judgment in favor of Howard against Hess. This writ was sent to Mr. Holden, the attorney for Hess, who pro [726] cured the bond in question, and submitted it for the inspection of plaintiff's attorney to see if he would be satisfied with-it. By some means which the court was. unable to find, this-bond got into the county clerk's office, but the writ of error was never filed with the clerk, and was afterwards dismissed for want of return, as a second writ had been subsequently issued. The court below found that the bond in suit had never been legally filed with the clerk, and was inoperative no writ of error having been served on the clerk, who could only receive and file it as security when, the writ of error was-served, so as.to stay execution pending error. We think this ruling was correct. The sureties signed for-no other purpose than to secure a stay pending proceedings-in error. Until a writ of error was served on the clerk, there-was nothing to stay execution, and nothing for the bond to-.operate on. The statute (section 8681) only provides for -filing such a bond when the writ of error is served on the-clerk; and while, possibly, the clerk might, on receiving the-writ, file such a bond previously left with him for that purpose, he could not do so otherwise. There is no finding here that the bond was ever delivered at all by any of the defendants or their attorney to the-clerk, and none that it was meant to be operative except in. furtherance of the statute. The finding is, when taken, together, to the contrary. The judgment must be affirmed, with costs. The other Justices concurred.