Ex parte Sibert , 67 Ala. 349 ( 1880 )

BBIOKELL, C. J.

— Under our statutes an appeal does not of itself supersede or arrest the execution of a judgment or decree. A bond with sufficient sureties, having the condition and payable as directed by the statute, must be executed and filed, or the party obtaining the judgment or decree, is entitled to proceed in its execution. If the judgment or decree is for the payment of money, the appeal bond must be in double the amount of the judgment, payable to the appellee, with sufficient sureties and with condition, “to prosecute the appeal to effect, and to satisfy such judgment as the Supreme Court may render in the premises.” — Code 1876, § 3927. When the decree or judgment is for anything other than the payment of money, the chancellor or register, or judge, fixes the amount and condition of the bond. — (Code of 1876, § 3928.

The decree obtained by the relators from which the appeal is taken is not merely for the payment of money. It declares a lien on lands for a specific sum of money, and orders the register of the court, if the money, with the costs of suit, is not paid by a day appointed, to make sale of the lands for the payment thereof. In Hughes v. Hatchett, 55 Ala. 539, it was held that a bond for an appeal from such decree, to operate as a supersedeas, should not be framed with the simple condition to prosecute the appeal to effect and satisfy the judgment of this court. It should be taken and framed under § 3928, in such sum and with such condition as will indemnify and secure the appellee from loss and damage resulting from the delay in the execution of the decree, if it is affirmed.

And we may adds if independent security for the costs of appeal is not given, the condition ought also to cover them. The bond taken by the register, having no other condition than that expressed in § 2927, cannot therefore operate to stay and supersede the execution of the decree, and it was the duty of the register on the application of the relators to proceed in its execution. — Stafford v. Union Bank, 17 How. 275. The only remedy of the relators was an application to the Chancellor for an order compelling the register to proceed and obey the decree. — Ex parte Mansony, 1 Ala. 98, High, Ex. Leg. Eem. §§ 80, 258. On the facts shown by the petition and its exhibits, there was no reason for the refusal of this order by the Chancellor. When it is shown prima facie that from error, or omission of duty, the judge of an inferior tribunal has denied to a party entitled, an order of this character, essential to a speedy execution of its judgments or decrees, a rule to show cause will be awarded, and if good cause be not shown on the return of the rule, a peremptory mandamus will be granted. — Stafford v. Union Bank, supra; U S. v. Trigg, 11 Pet. 173.

A rule must issue to the Chancellor of the eastern chancery division, requiring him, on the first day of the next term of this Court, to show cause why a mandamus should not issue commanding him to order the register to proceed to carry into effect the decree in favor of the relators, unless in the mean time the appellants shall execute a proper supersedeas bond.