72 Ala. 535 | Ala. | 1882
This is a suit upon an appeal bond, by which a judgment of a Circuit Court of the United States was carried to the Supreme Court, and there affirmed. The complaint has two counts; one claiming that the bond is a statutory supersedeas bond; the other, counting on it as a common-law obligation. Each count, however, is sufficient, if we treat the bond simply .as a common-law undertaking; and each assigns, as a special breach, that the appeal was not prosecuted to effect, and that the costs of appeal were not paid. To this extent, there can be no question that appellees were entitled to recover, and the demurrer was properly overruled.—Hughes v. Hatchett, 55 Ala. 539; Drake v. Webb, 63 Ala. 596; Shelton v. Otis, at the last term.
Under the act of Congress, and the rulings thereon, we feel bound to hold that the bond did not, and could not, operate as ■a supersedeas. It was not approved by a judge of the Circuit Court, and a copy of the writ of error, for the adverse party, was not deposited with the clerk, as the statute requires. Black v. Zacharie, 3 How. U. S. 483; O’Reilly v. Edrington, 96 U. S. 724; National Bank v. Omaha, Ib. 737; Railroad Company v. Harris, 7 Wall. 574; O’Dowd v. Russell, 14 Wall. 402; Anson v. Railroad Company, 23 How. 1; Hogan v. Ross, 11 How. U. S. 294; Davenport v. Fletcher, 16 How. 143; Hudgens v. Kemp, 18 How. 530; Slaughter House cases, 10 Wall. 273, 290; Goddard v. Ordway, 94 U. S. 672; Rev. Stat. U. S. §§ 1,000, et seq.
The rulings of the Circuit Court are not reconcilable with the views above expressed.
Reversed and remanded.
This case has never been reported, the. opinion having been lost or mislaid. Rep.