Ex parte Sibert
- Reporters:
- Before:
- Bbiokell
— Under our statutes an appeal does not of itself supersede or arrest the execution of a judgment or decree. A bond with sufficient sureties, having the condition and payable as directed by the statute, must be executed and filed, оr the party obtaining the judgment or decree, is entitled to proceed in its execution. If the judgment or decree is fоr the payment of money, the appeal bond must be in double the amount of the judgment, payable to the apрellee, with sufficient sureties and with condition, “to proseсute the appeal to effect, and to satisfy such judgmеnt as the Supreme Court may render in the premises.” — Code 1876, § 3927. When the decree or judgment is for anything other than the payment of money, the chancellor or register, or judge, fixes *352thе amount and condition of the bond. — (Code of 1876, § 3928.
The decree obtained by the relators from which the appeal is taken is not merely for the payment of money. It declаres a lien on lands for a specific sum of money, and оrders the register of the court, if the money, with the costs of suit, is nоt paid by a day appointed, to make sale of the lands for the payment thereof. In Hughes v. Hatchett, 55 Ala. 539, it was held that a bond for an appeal from such decree, to operate as a supersedeas, should not be framed with the simple condition to prosecute the appeal to effect and satisfy the judgment of this court. It should be taken аnd framed under § 3928, in such sum and with such condition as will indemnify and secure thе appellee from loss and damage resulting from the dеlay in the execution of the decree, if it is affirmed.
And we mаy adds if independent security for the costs of appeal is not given, the condition ought also to cover them. Thе bond taken by the register, having no other condition than that еxpressed in § 2927, cannot therefore operate tо stay and supersede the execution of the decrеe, and it was the duty of the register on the applicatiоn of the relators to proceed in its execution. — Stafford v. Union Bank, 17 How. 275. The only remedy оf the relators was an application to the Chancellor for an order compelling the register to proceed and obey the decree. — Ex parte Mansony, 1 Ala. 98, High, Ex. Leg. Eem. §§ 80, 258. On the facts shown by the petition and its exhibits, there was no reason for the refusal of this order by the Chancellor. When it is shown prima facie that from error, or omission of duty, the judge of an inferior tribunal has denied to a party entitlеd, an order of this character, essential to a spеedy execution of its judgments or decrees, a rule to show cause will be awarded, and if good cause be not shown on the return of the rule, a peremptory mandamus will be granted. — Stafford v. Union Bank, supra; U S. v. Trigg, 11 Pet. 173.
A rule must issue to the Chancellor of the eastern chancery division, requiring him, on the first day of the next term of this Court, to show cause why a mandamus should not issue commanding him to order the register to proceed to carry into effect the decrеe in favor of the relators, unless in the mean time the aрpellants shall execute a proper supersedeas bond.