19 Neb. 149 | Neb. | 1886
This is an application for a peremptory writ of mandamus to compel the judges of the district court of Doug
It is alleged in tbe affidavit on which the application is made, “ that said court refused, and still refuses, to fix the amount in which a supersedeas bond should be given by said respondent in said proceedings, or the form thereof, and refused, and still refuses, to permit said respondent to supersede said writ and judgment upon proceedings in error to the supreme court to review the same, giving as the only ground for such refusal that the law does not provide for a supersedeas upon error to the supreme court in mandamus cases.”
The attorney for the -respondents has filed an affidavit wherein he alleges that the respondents refused to fix a supersedeas bond, for the reason that the Omaha Horse Railway Co. were not entitled to supersede the judgment and final order in said cause, and that there was no law requiring them to fix the amount of a supersedeas bond in said cause; and that said refusal was not made on the sole ground that there was no law providing for supersedeas bonds in 'mandamus cases in general
Sec. 588 of the code provides for a supersedeas — 1st, When the judgment or final order sought to be reversed directs the payment of money, in which case the undertaking is required to be in double the amount of the judgment or order; 2d, When it directs the execution of a conveyance or other instrument the court or judge is required to fix the amount of the undertaking; 3d, When the judgment or final order directs the sale or delivery of real property, the court or judge is required to fix the amount of the undertaking
There are other provisions to which it is unnecessary to refer.
The relator seeks to compel the defendants to fix the amount of the undertaking because the statute makes it their duty to do so, and it has a right to enforce the performance of that duty. The final judgment was that the relator should run cars over a certain portion of its road. The right to review such a judgment on error is undoubted, but the authority of the judges to fix the amount of super-sedeas to stay the judgment in such a case is not conferred by statute. The writer has spent considerable time in the examination of authorities, but has been unable to find a single case where the question involved was similar to that under consideration in which a supersedeas was granted.
In People v. Throop, 12 Wend., 183, the cashier of a bank refused to permit a director, who it was claimed was hostile to the bank, to inspect the discount book, and the board of directors afterwards passed a resolution excluding such director from such inspection. The court, upon the return to a rule to show cause, granted a peremptory writ of mandamus to compel the cashier to permit an inspection of the book, but no stay of proceedings seems to have been granted
In People v. Steele, 1 Edmund’s Select Cases, 505, it was
’WRIT DENIED.