Ex Parte the Milwaukee Railroad Co. , 18 L. Ed. 676 ( 1867 )

72 U.S. 188 (____) 5 Wall. 188

EX PARTE THE MILWAUKEE RAILROAD COMPANY.

Supreme Court of United States.

Messrs. Cram and Cushing, in favor of petition; Mr. Cary, contra.

Mr. Justice MILLER delivered the opinion of the court.

Although this court does not concur in the opinion of the district judge, that the fact of the non-residence of the sureties within the district is a sufficient reason for rejecting a bond which is in all other respects unobjectionable, we are not inclined to interfere by mandamus with the discretion of that judge in approving or rejecting a bond offered for his approval. If we had the right to do this, which is extremely doubtful, it is unnecessary, as the remedy which is in our own hands is ample. The case being properly in this court by appeal, we have, by the fourteenth section of the Judiciary Act, a right to issue any writ which may be necessary to render our appellate jurisdiction effectual. For this purpose the writ of supersedeas is eminently proper in a case where the circumstances justify it, as we think they do in the present instance. Hardeman v. Anderson,^[*] is an example of the exercise of this power precisely in point.

We shall therefore make an order, that upon the filing of a bond for the sum of $50,000, with the usual conditions, at any time within thirty days from this date, which shall be approved by the clerk of this court, a supersedeas will issue from this court to the judge of the Circuit Court of the United States for the District of Wisconsin, and to the marshal of the United States for said district, commanding a stay of proceedings on said decree until the further order of this court,

THE SAME BEING SUPERSEDED.

NOTES

[*] 4 Howard, 640.