1 F. Cas. 1179 | S.D.N.Y. | 1877
This court has jurisdiction of this suit. It is not an original suit, but is an offshoot or out-branch of the suit in which the bond was given, and jurisdiction of that suit gives jurisdiction of the subject-matter of this suit, the defendants having been duly served with process in this suit. Jones v. Andrews, 10 Wall. [77 U. S.] 327; Christmas v. Russell. 14 Wall. [81 U. S.] 69; Bobyshall v. Oppenheimer, [Case No. 1,592;] Hatch v. Dorr, [Id. 6,206;] Gwin v. Breedlove, 2 How. [43
Arnold and Littlefield liad a sufficient joint interest with each other and with the Sayings Bank, under the transactions ‘litigated in the original suit, to bring that suit in their joint names, and the defendants gaye their bond to the three parties jointly. This is sufficient warrant for the only two of those three parties who now claim any interest in the bond, to bring suit on it in their joint names.
Under section 1000, of the Revised Statutes, the security to be taken on signing a citation on an appeal is good and sufficient security that the appellant shall prosecute his appeal to effect, and, if he fail to make his plea good, shall “answer all damages and costs,” where the appeal “is a su-persedeas and stays execution, or all costs only, where it Is not a supersedeas as aforesaid.” Section 1000 is applicable to the present case. (See sections 1012 and 4981 and General Order No. 26, in bankruptcy.) It is contended, for the defendants, that a bond on appeal is not a bond for any part of the decree below, unless it operates as a supersedeas and stay of execution and as an agreement to pay the decree; that the bond in this case did not so operate; and that, for the bond to operate as a superse-deas, there must be an order to that effect.
It is well settled, that an appeal becomes a supersedeas and stays execution in the court which rendered the decree, not by virtue of any order to that effect, but by virtue of a compliance with the conditions prescribed by the statute. When those conditions are complied with, the statute operates to suspend the jurisdiction of the court below, and to stay execution in the case, pending the appeal. The Slaughterhouse Cases, 10 WaU. [77 U. S.] 289, 291; Kitchen v. Randolph, 93 U. S. 88; Goddard v. Ordway, 94 U. S. 673. The terms of the condition of the bond in this case made the bond operate as a supersedeas and stay of execution, without any order to that effect; and the obligors in the bond are liable to the- extent of the penalty of the bond, the decree having been affirmed on appeal, for all damages and costs which have been awarded against Frost, as appellant.
