WESTERN AIR LINE CONSTRUCTION COMPANY
v.
MCGILLIS
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Western Air Line Construction Company sought to vacate a supersedeas in a writ of error, but the Supreme Court found that the writ of error was not sued out or served within the sixty-day statutory period required for a supersedeas to operate. The Court held that the writ of error could not function as a supersedeas as a matter of law, and therefore denied the motion.
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Mr. Justice Miller:
This is a motion to vacate what is called a supersedeas. The papers show that the writ ivas neither sued out or served within sixty days after the rendition of the judgment which is the subject of the writ of error: It follows as a matter of course that the writ cannot operate as a supersedeas, and we know of no motion that is necessary or proper in this court on that subject. Writs of supersedeas do not issue, unless it may become necessary from some peculiar circumstances. • The statute declares .that, when within sixty days, the plaintiff sues out his writ of error, files it with the clerk of the proper court, and then gives a bond within a certain time mentioned by the statute, that the bond, if approved for that purpose by the judge who grants the citation and the writ of error, shall operate as a supersedeas. It is a matter of law whether it operates as a supersedeas.
There is no evidence here of any proceeding to collect a debt which has been disregarded. At all events there is no occasion for a supersedeas.
The motion is denied.
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Marshall v. State, 344 So. 2d 646 (Fla. 2d DCA 1977)…CA 1968); Decree v. State, 180 So. 2d 667 (Fla. 1st DCA 1965). . E. g., Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970); Allen v. Georgia, 166 U.S. 138, 17 S.Ct. 525, 41 L.Ed. 949 (1897); Bonahan v. Nebraska, 125 U.S. 692, 8 S.Ct. 1390, 31 L.Ed. 854 (1887); Sanford v. State, 75 Okl.Cr. 362, 131 P. 2d 770 (1942); Tyler v. State, 3 Okl.Cr. 179, 104 P. 919 (1909); State v. Scott, 70 Kan. 692, 79 P. 126 (1905); McGowan v. People, 104 Ill. 100, 44 Am.Rep. 87 (1882); People v. Redinger,…
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United States v. Liddy, 510 F.2d 669 (D.C. Cir. 1974)…to determine the appeal.” Majority opinion at 677. Confronted with that situation, the Supreme Court has dismissed [*689] the appeal. Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970); Bohanan v. Nebraska, 125 U.S. 692, 8 S.Ct. 1390, 30 L.Ed. 71 (1887); Smith v. United States, 94 U.S. 97, 24 L.Ed. 32 (1876). These decisions indicate that, contrary to the majority’s position, “changes in the continuity of a sentence” do in fact “impinge upon the appellate function.” But the re…
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