Sec. 1007 of the Revised Statutes, which, as amended by the Act
of Feb. 18, 1875, 18 Stat. part 3, p. 316, provides that where a
writ of error may operate as a supersedeas, execution shall not
issue until the expiration of ten days after the rendition of the
judgment, has reference only to the judgments of the courts of the
United States.
On the fifteenth day of August, 1876, the Supreme Court of
Wisconsin rendered a judgment ordering that
"a peremptory writ of mandamus do forthwith issue out of and
under the seal of the court, to be directed to the respondent
[plaintiff in error], commanding him, and in his absence the
assistant secretary of state, forthwith, within twenty-four hours
after the service of the writ,"
to recall the license given by him to the Continental Insurance
Company of the City of New York to do business in that state. The
writ was issued and served on the same day, and on the next, Aug.
16, its command was obeyed. On the 10th October, 1876, this writ of
error was sued out in due form, and bond given to operate as a
supersedeas.
The plaintiff in error now moves that all the proceedings in
execution of the judgment within ten days after its rendition
Page 94 U. S. 51
may be vacated and set aside, and that all further process be
stayed.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
The claim on the part of the plaintiff in error is that as a
writ of error to operate as a supersedeas might issue from this
Court to reexamine the judgment of the court below, a writ to carry
the judgment into effect could not issue from the state court until
the expiration of ten days after the rendition of the judgment.
Whether this is so or not depends upon the effect to be given to
that clause in sec. 1007, Revised Statutes, which, as amended by
the Act of Feb. 18, 1875, 18 Stat. part 3, p. 316, reads as
follows: "And in such cases, when a writ of error may be a
supersedeas, executions shall not issue until the expiration of ten
days" -- that is to say, until the expiration of ten days after the
rendition of the judgment.
The writ of error issued in this case under sec. 709 of the
Revised Statutes, which is a reproduction of sec. 25 of the
Judiciary Act of 1789, 1 Stat. 85, as amended before the revision.
The part of sec. 1007 referred to is the reproduction of a similar
provision in sec. 23 of the same act. The Revised Statutes are a
revision and consolidation of the old statutes, rather than an
enactment of new. 16 Stat. 96; 14
id. 75, sec. 2. Sec.
5600 provides that
"The arrangement and classification of the several sections of
the revision have been made for the purpose of a more convenient
and orderly arrangement of the same, and therefore no inference or
presumption of a legislative construction is to be drawn by reason
of the title under which any particular section is placed."
This makes it proper that we should look to the original act to
ascertain the legislative intent in cases of doubt.
Page 94 U. S. 52
Going, then, to the old law, we find that sec. 22 relates
entirely to writs of error for the review of judgments and decrees
in the courts of the United states. Then follows sec. 23, which
provides "that a writ of error as aforesaid," clearly referring to
the writ provided for in the preceding section,
"shall be a supersedeas, and stay execution in cases only where
the writ of error is served . . . within ten days, Sundays
exclusive, after rendering the judgment or passing the decree
complained of. Until the expiration of the term of ten days,
execution shall not issue in any case where a writ of error may be
a supersedeas."
Read in this connection, it is clear that the provision for
delay of execution refers only to judgments and decrees in the
courts of the United states. Sec. 25 then provides for writs of
error to a state court, and adopts the regulations of sec. 22, as
to the writ and proceedings under it, but omits entirely any
direction as to delay of execution upon the judgment.
From this we think it manifest that it was not the intention of
Congress, under the act of 1789, to interfere at all with the
practice of the state courts as to executions upon their judgments,
until a supersedeas was actually perfected, and that the same
effect must be given to the corresponding sections of the revision.
In
Board of Commissioners v.
Gorman, 19 Wall. 664, we held that if an execution
was issued upon a judgment in the courts of the United states after
the expiration of ten days, a supersedeas afterwards obtained would
prevent further proceedings under the execution, but would not
interfere with what had already been done.
Applying this principle to the case in hand, it follows that, as
the writ of mandamus was rightfully issued and served before the
supersedeas was obtained, this motion must be denied.
Motion denied.
