Telegraph Co. v. Eyser

dissenting:

Writs of error at common law, when bail was duly entered, operated as a supersedeas, but the twenty-third section-of the Judiciary Act provides that a writ of error shall be a supersedeas and stay execution in cases only where the, writ of error is served by a copy thereof being lodged for the adverse party iu the clerk’s office . . . withiu ten days, Sundays exclusive, after rendering the judgment or passing the decree. Such writs, as provided in the preceding section of that act, may be brought within five years after the judgment is rendered or the decree is passed; and that section also provides that every justice or judge signing a citation on any writ of error, as aforesaid, shall take good and sufficient security that the plaintiff’ in error shall prosecute his writ to effect, and answer all damages and costs if he *429fail to make his plea good.* Under that provision this court decided that the security to be taken from'the plaintiff iu error by the justice or judge signing the citation must be sufficient to secure the whole amount of the judgment.† Where the writ of error is not a supersedeas and does not stay execution the security required and taken by the justice or judge signing the citation shall be only to such an amount as, in the opinion of the justice or judge taking the same, shall be sufficient to answer all such costs as, upon an affirmance of the judgment or decree, may be adjudged or decreed to the respondent.‡ But where the losing party desires to :make the writ of error a supersedeas, and to stay execution, he must sue out the writ and serve the same by lodging a copy thereof for the adverse party in the clerk’s office within ten days, Sundays exclusive, after the judgment is rendered or the decree is passed, and give the security required by the prior section in a sum sufficient to secure the whole amount of the judgment, except in certain special cases, as provided in the twenty-ninth rule of this court. Within that period it is the absolute right of the party to adopt the necessary measures to stay execution pending the writ of error or appeal, and in order that he may not be prejudiced in the enjoyment of that right, the same section of the Judiciary Act provides that until the expiration often days no execution shall issue in any case where a writ of error may be a supersedeas, and also makes provision, in case the judgment or decree is affirmed, that the court affirming it may adjudge just damages to the respondent in the writ of error for his delay, and single or double costs, at their discretion. Repeated decisions of this court have established the rule that neither a writ of error nor an appeal is a supersedeas under the Judiciary Act unless the required security be given within the ten days mentioned in the twenty-third *430section of the act.* Compliance with the conditions specified in the twenty-third section of the Judiciary Act must be shown in order that the writ of error or appeal may operate as a supersedeas and stay execution, and the rule is also well settled that if the writ of error be not sued out in time to operate as a supersedeas this, court cannot award a stay of execution.† Unless the requirements of the act of Congress are complied with, within the ten days allowed for-the purpose, no court can make a writ of error or appeal operate as a stay of execution under the Judiciary Act.‡

Grant all that, when the question is tested by the Judiciary Act, still it is insisted that the twenty-third section of the Judiciary Act is repealed by the eleventh section of 'the act entitled “An act to further the administration of justice,”§ so as to substitute sixty days in the place of ten days as provided in the former act.

By that act it is provided that the plaintiff in error or appellant in such a case “may give the security required by law therefor within sixty days after the rendition of such judgment, decree, or order, or afterwards, with the permission of a justice or judge of the said appellate court.” Undoubtedly the security required by the twenty-second section of the Judiciary Act to be given to prosecute the appeal with effect may be given within sixty days from the date of the judgment or decree, but the act to further the administration of justice contains no provision whatever making writs of error or appeals a supersedeas, or giving them the effect to stay execution under any circumstances. They have that operation and effect by virtue of the twei^’-third section of the Judiciary Act “in cases only where the writ of error is served by a copy thereof being lodged for the *431adverse party in the clerk’s office” . . . “within ten days, Sundays exclusive,” from the date of the judgment or decree. No provision of a different character upon that subject is enacted in the new act, nor does it contain a word repugnant to the language or the requirements of the former provision. Execution is required to be stayed by the former provision for the term of ten days, but the new law does not contain any regulation upon that subject.

None of these suggestions can be controverted, but the argument is that inasmuch as Congress has extended the time for giving the security to prosecute the appeal to sixty days, it follows that the writ of error may be served within that time and still have the effect of a supersedeas, although the ouly section of the act of Congress which gives it that effect provides that it shall have such an operation in cases only where the service is made by lodging a copy of it in the clerk’s office for the adverse party within ten days.

Ten days from the date of the judgment or decree is allowed by the former law to serve the writ of error, but the new act allows to a party desiring to stay proceedings sixty days-to give the required security; audit even goes further and permits it to be given afterwards, with the permission of a justice or judge of the appellate court.

Questions not without difficulty, says Mr. Phillips, are suggested by a comparison of these two acts, as the time within which the security is to be given is alone acted on by the new act.' Based on that suggestion the author inquires, very pertinently as it seems to me, does this alteration carry along with it a change of all the other provisions of the old act as to the lodging of the writ of error in the clerk’s office within ten days, and the provision that no execution shall issue withiu the ten days? The answer to the question, as given by the author, is directly opposed to the opinion just read, which appears to proceed upon the ground that inasmuch as a change has been made in one of the conditions essential to a valid supersedeas it follows that the same change must be considered as made in all the other conditions, even though the new act contains no other language *432to express any such intention, which, as it seems to me, reverses the standard rule of construction as expressed in a valuable maxim, often quoted, and applied in such discussions — jExpressio unius esl exclusio allerius. If Congress had intended to make other alterations in the prior regulations upon the subject it is fairly to be presumed they would have said so, as it is always to be presumed that the legislature when it entertains an intention will express it in clear and explicit terms.* If the legislature intended more, said Lord Denman, in Haworth v. Ormerod,† we can only say, that according to our opinion they have not expressed it; to which it may be added that the better rule of construction is to hold that the legislature meant what they have actually expressed, unless some manifest incongruity would result from doing so, or unless the context clearly shows that such a construction would be erroneous.‡ Words may sometimes be transposed, but they cannot be inserted.§ Intention, it is true, should govern, but it must be such an intention as the legislature have used fit words to express.ǁ Repeals by implication are not favored¶ On the contrary, the leaning of the courts, says Mr. Justice Swayne,** is. against the doctrine, if it be possible to reconcile the two acts of the legislature together. Our best judgment is, says Mr. Phillips, that while the law has secured the right to stay proceedings by giving security in sixty days, the party is still bound to lodge his writ, as required by the Judiciary Act, within ten days, and that in the absence of a supersedeas bond filed within that period the execution may issue; and in that view I concur, and consequently dissent from the direction and opinion of the court. Service of the writ of error by lodging a copy thereof in the clerk’s office for the adverse party within ten days, without more, will not *433effect a stay of execution, but if the security required is given within sixty days the supersedeas becomes effectual from the time the required security is given.

delivered the opinion of the court.

This is an application for a writ of supersedeas or an order, to the Supreme Court of Colorado Territory, and to the District Court of the first judicial district in and for the county of Arapaho, in that Territory, commanding that further pro*426ceedings upon the judgment in this case be stayed pending the writ of error whereby the judgment was brought into this court for review. The judgment was affirmed by the Supreme Court of the Territory on the 6th of September, 1873. On the 8th of October following the defendant sued out a writ of error returnable to this court. It was duly served and returned. On the day last mentioned a citation was served on the adverse party, and a supersedeas bond in the sum of $12,000, conditioned and approved according to law, was filed in the proper office. The plaintiffs in error represent in their petition that the defendant in error has' applied to the Supreme Court of the Territory for an order that execution issue on the judgment, notwithstanding the writ of error and the supersedeas bond, and that they are apprehensive such an order will be made.- Hence this application here.

The twenty-third section of the Judiciary Act of 1789 declares “ that a writ of error, as aforesaid, shall be a supersedeas and stay of execution in cases only where the writ of error is served by a copy thereof being lodged for the adverse party in the clerk’s office where the judgment remains, within ten days, Sundays exclusive, after rendering the judgment or passing the decree complained of.”

The second section of the act of 1803 makes appeals “ subject to the same rules, regulations, and restrictions as are prescribed in law in cases of writs of error.”

The twenty-second section of the act of 1789 requires “that every justice or judge signing a citation on any writ of error as aforesaid, shall take good and sufficient security that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs if he fail to make his plea good.”

Where the judgment or decree is for money, not otherwise secured, the bond “must be for the whole amount of the judgment or decree, including just damages for delay and costs and interest on the appeal.”* And such bond *427must be approved and filed within the ten days prescribed for the service of the writ of error.*

Such was originally the state of the law upon this subject. It frequently subjected parties to great inconvenience and sometimes to serious injury. If the writ were not served and the bond given within ten days from the rendition of the judgment or decree, the defendant, if it were for money, tvas liable to be compelled to pay, although he might ultimately be victor in the litigation. In such case he would lie out of the use of his money in the meantime, and finally be compelled to take the chance of getting it back, perhaps by further litigation. The facts and the law might be for him and yet the money be lost. If real estate were involved, he was liable to be turned out of possession and to lose all benefit from the property during the same period. It was frequently impossible to serve the writ and give the bond within the ten days, though both might readily have been done if more time were allowed.

The eleventh section of the act of June 1st, 1872, wms intended to remedy these evils. That section is as follows:

“That any party or person, desiring to have any judgment, decree, or order of any District or Circuit Court reviewed on writ of error or appeal, and to stay proceedings thereon during the pendency of such writ of error or appeal, may give the sécurity required by law therefor within sixty days after the rendition of such judgment, decree, or order, or afterward, with the permission of a justice or judge of the said appellate court.”

These provisions are remedial, and, therefore, to be construed liberally. So far as there is any conflict with the pre-existing rules, the latter must yield. The intention of the lawmaker constitutes the law.† What is clearly implied in a statute is as effectual as what is expressed.‡ It is expressly declared that the supersedeas bond may be executed within sixty days after the rendition of the judgment, and *428later, with the permission of the designated judge. It is not said when the writ of error shall be served. Its issuance must, of course, precede the execution of the bond; and, as the judge who signs the citation is still required to take the bond, we think it is sufficiently implied that it may be served, at any time before, or simultaneously with, the filing of the bond. Indeed, the giving of the bond alone is made the condition of the stay. The section is silent as to the writ. A construction which requires the service to be still within ten days from the rendering of the judgment, is, we think, too narrow. It is sustained by no sufficient reason, and would largely defeat the salutary purposes of the statute. The execution, approval, and filing of the bond are substantial. The filing of the writ is matter of form. Form, under the circumstances, must not be allowed to defeat substance, where the consequences would be of so serious a character. The application of the plaintiffs in error is founded upon this section. As we construe it, their ease is within it. The order asked for will be directed to issue, unless this opinion shall render that procedure uuueeessary.