Saltmarsh v. Tuthill , 53 U.S. 387 ( 1851 )

Mr. Chief Justice TANEY

delivered the opinion of the court.

The judgment in this ease being in a common-law proceeding, it was not removed to this court by the appeal; and, consequently, the appeal-bond did not operate as a supersedeas.

The writ of error afterwards sued out, has brought the case regularly before this court. But as it was not sued out within ten days after the rendition o,f the judgment, the writ of error-bond does not stay the execution under the act of 1789. °

Nor is there any equitable power in' the Circuit Court to stay the execution, upon the ground that a mistake as to the manner or time of removing the case was committed. And it is immaterial in this respect whether it was the mistake of the party or the court. For this court has never deemed the tribunals of the United States authorized to dispense with the express provisions of the acts of Congress regulating appeals and writs of error, upon any equitable ground. No such power is given to them by law. It was so decided in this court in United States v. Curry and others, 6 How. 113; and Hogan and others v. Ross, 11 Id. 297. The Circuit Court therefore erred in setting aside the execution which the plaintiff had issued on the judgment.

But we do not think it necessary at this time to determine, whether this court has the power to issue the mandamus, requiring the Circuit Court to issue the execution. Because we are satisfied from the facts before us, that the Circuit Court, without any coercive process, will conform to the opinion of this court, and issue execution when informed of this decision.

The question, therefore, as to'the power of this court'to issue the mandamus, is, for the present, reserved.