Green v. Van Buskerk , 18 L. Ed. 245 ( 1866 )

70 U.S. 448 (1865) 3 Wall. 448

GREEN
v.
VAN BUSKERK.

Supreme Court of United States.

Mr. J.B. Gale, against the motion.

The CHIEF JUSTICE delivered the opinion of the court.

We have already held, at this term, in a case from Massachusetts,^[*] that when the Supreme Court renders final judgment, and sends the judgment to a court below for execution, and with the judgment the record, a writ of error to review the judgment may be issued to the latter court.

In that case, it is true, no question was made in respect to the operation of the writ as a supersedeas; but we think that the true construction of the act of Congress requires us to hold that a judgment cannot be regarded as final, in the sense of the act, until entered in a court from which execution can issue.

In the case now before us, the record was sent by the Court of Appeals to the Supreme Court, and the judgment was entered in the latter court in conformity with the direction of the former. This was, it is true, the judgment of the Court of Appeals as well as the judgment of the Supreme Court; but it became a final judgment, on which execution could issue only when entered, on the 16th February, 1866, in the Supreme Court, to which the record was returned, and where it remained.

The unsuccessful party had ten days from that entry to take out a writ of error and make it a supersedeas; and he duly availed himself of this right by service of the writ of error on the 20th February, 1866, and giving the required bonds.

The direction to issue execution was given under a mistaken construction of the act; and its issue makes it necessary that a writ to stay the proceedings be sent from this court.

MOTION ALLOWED.

NOTES

[*] McGuire v. The Commonwealth. (Motions.) Supra, 382.