In re Haberman Manufacturing Co.

after stating the case, delivered, the opinion of the court.

It is contended for the petitioner that it is entitled, as a matter of right, to a supersedeas of the injunction pending the appeal, and that the Circuit Court had no discretion to refuse it. As authority for this alleged' right reference is made to § 7 of the act of March 3,1891, c. 517, 26 Stat. 828, which provides : “ That where, .upon a hearing in equity in a District Court, or in an existing Circuit Court, an injunction shall be granted, or continued by an interlocutory order or decree, in a cause in which an appeal from a final decree may be taken under the provisions of this act to the Circuit Court of Appeals, an appeal may be taken from such interlocutory order or decree granting or continuing such injunction to the Circuit Court of Appeals: Provided, That the appeal must be taken within thirty days from the entry of such order or decree, and it shall take precedence in the Appellate Court; and the proceedings in other respects in the court below shall not be stayed unless otherwise ordered by that court’during the pendency of said appeal.”

*530 . - It is clear that this is a case in which the appeal was properly taken and within the time limited; and it is contended for the petitioner that under § 7 it has an absolute right to a supersedeas of the injunction pending the appeal, on the filing of a bond satisfactory to the Circuit Court. Reference is made to the case of Pasteur v. Blount, 51 Fed. Rep. 610, in the Circuit Court for the Southern District of Ohio, where, a supersedeas having been allowed, on granting .a like appeal, a motion to vacate the supersedeas was denied, the court (Jackson, Circuit Judge) saying that, under § 7, there was no discretion in .the court or judge allowing the same to deny or refuse the appellant a supersedeas.

The argument made is, that the use, in § 7, of the words “ in other respects,” implies that there must be a stay as to the operation of an injunction, while the only discretion given is as to ordering a stay, “ in other respects ” than as to the injunction. But there is no express provision that'the operation of the injunction must be stayed. The matter is rested wholly on implication. The defendant is sought to be protected by requiring him to take an appeal within thirty days and by giving precedence to the case in the appellate court; and discretion is given to the Circuit Court to proceed or not on the interlocutory decree pending the appeal. "Where a plaintiff has an adjudication that he is entitled to an injunction, he has rights which cannot be abridged or stayed by language which is not more clear and unambiguous than that contained in § 7. The matter may be made clear by legislation. As it stands, the Circuit Court had a discretion to grant or refuse a supersedeas ; and its discretion, as we have uniformly held, (In re Hawkins, Petitioner, ante, 486, and cases there cited,) cannot be controlled by a writ of mandamus.

Application denied.