THE BELGENLAND. EX PARTE WARDEN AND OTHERS. WARDEN AND OTHERS, PETITIONERS
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In a maritime admiralty case, the Supreme Court upheld a lower court's authority to enter a decree against both a principal and sureties under a stipulation executed pursuant to federal statute, even during the pendency of an appeal. The Court held that the court had jurisdiction to enter the decree and that any alleged error could not be corrected through mandamus, as the question of whether the decree created a lien on the sureties' real estate was a matter to be addressed on the merits of the appeal, not in advance of it.
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Mr. Chief Justice Waite delivered the opinion of the court.
It is not stated in -the petition that the stipulation was, executed under the provisions of sec. 911 of the Revised Statutes, but for the purposes of this application we assume it was, there being no representation to the contrary. That section provides in express terms for a return of the stipulation to the court, and that “judgment thereon against both principal and sureties may be recovered at the time of rendering the decree in the original cause.” It would seem as though notMng more wasr needed to show the power of the court to include the stipulators in the original decree. Under section 1007 of the Revised Statutes, no execution can issue until the expiration of ten days after the entry of the decree. In this respect these decrees are like',, others. An appeal with supersedeas stays execution against the stipulators as well as the principal. Therefore, there is notMng in the decree inconsistent with the provision in the stipulation in respect to the time when execution may issue.
It is no doubt within the power of the court to postpone a decree ágáinst the sureties until after, the time for appeal by the principal has expired, and then to proceed only on notice. Such is the practice in some of the circuits, but we can find nothing in the statute which malees this imperative. In the case of The New Orleans, 17 Blatchf. 216, to which our attention has been directed by the counsel for the petitioners, the proceeding was against the sureties for the claimants, on their appeal, from the district court to the circuit court, and the court refused to enter the judgment on such a bond until after the time for perfecting an appeal to tMs court had expired. That was an entirely different question from the one presented here upon a stipulation entered into under section 911.
It is unnecessary to consider whether in law the decree-is a lien on the real estate of the stipulators after the appeal. Our inquiry is not as to the effect of the decree, but as to. the jurisdiction of the court to enter it. . If there was jurisdiction, any error that may have been committed cannot-be corrected by mandamus.
'Mr. Morton P. Henry ih, áuppbrt of the motion.
Mr. Henry Flanders against it.
As, upon the showing made by the petitioners, we are clearly of opinion they are not entitled to the relief they ask..
The alternatwe writ is-denied.
The stipulators then filed their petition in this' court setting forth the same facts, and prayed “this court by an order in this cause to grant relief, by setting aside the said decree as a lien op the real estate of the petitioners; on-such tefms as the court shall be pleased to pronounce just and equitable, to sureties in a cause pending an appeal; or will'be pleased by its mandate to direct or authorize the circuit court to proceed in the said matter in such manner as shall bé consonant to the rights of yóur petitioners and of the libellant; your petitioners submitting themselves in all.things to the order to be made on the premises-.”
Mr. Chief Justice Waite delivered the opinion of the court.
The decree appealed from was against the respondent and his stipulators. If the decree operates as alien on the real estate of the stipulators, notwithstandingthe appeal, it is an advantage the law gives the appellee for his-security, with which we ought not to interfere'in advance of the hearing of ihe case on' its merits. Whether there is such a lien we-do' not decide. That is a question which is not presented to us for determination by the appeal.
Motion denied.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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The Belgenland, 114 U.S. 355 (U.S. 1885)
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United States v. Mack, 295 U.S. 480 (U.S. 1935)…ol of the res thereafter as a continuing possibility. A bond such as this one has very little analogy to a form of bond common in the admiralty whereby the stipulators become bound to “pay the amount awarded by the final decree.” Cf. The Belgenland, 108 U. S. 153; The City of Norwich, 118 U. S. 468, 489. Upon a bond so conditioned the liability of the stipulators is inchoate until perfected by a decree for the disposition of the res or of the proceeds of the bond accepted as a substitute. Here, on the contra…
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Elliot v. Lombard, 66 F.2d 662 (5th Cir. 1933)…When such a bond is given, it is a substitute for the vessel. Gray v. Hopkins-Carter Hardware Co. (C. C. A.) 32 F.(2d) 876. A final judgment could have been rendered against the principal and surety on the stipulation in this ease. The Belgenland, 108 U. S. 153, 2 S. Ct. 383, 27 L. Ed. 685. It is erroneous to say that the surety on a release bond in admiralty is not a party to the suit, although in the usual procedure he takes no part in the conduct of the ease. The judgment in the instant case is somewha…
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- The Bank of Columbia v. Sweeny, 1 Pet. 567 (U.S. 1828)
- The Ann Caroline, 2 Wall. 538 (U.S. 1864)