Magraw v. McGlynn

By the Court, Sawyer, J.: On the 6th of December, 1864, this Court filed its opinion and announced its judgment in this case, and a minute of the judgment rendered was entered by the Clerk in the record of that day’s proceedings. A petition for rehearing was subsequently filed within the time allowed by the rules of this Court, and the remittitur stayed until the decision on the petition. The petition was denied on the 21st of January, 1865. On the 27th of January a writ of error to the Supreme Court of the United States was sued-out and lodged with the Clerk of this Court and the proper security given. Was the writ sued out within ten days “after rendering the judgment,” within the meaning of these terms, as used in the Act of Congress on the subject, so as to operate as a supersedeas? (1 U. S. Stat. at Large, p. 85, Sec. 22.)

The Supreme Court of the United States have construed this provision with reference to a strictly analagous state of facts. A final decree was rendered on the 10th of May. A petition to reopen the decree for certain purposes was filed on the 26th of the same month, in the same term, and denied on the 9th of June. An appeal was taken from the decree and the order on the 15th of June, and the proper bond given. It was claimed that the appeal was too late to operate as a supersedeas. The Court held the order not appealable; that the [260]final and appealable decree was rendered on the 10th of May, but that the decree was suspended by the subsequent action of the Court and did not take effect until the 9th of June, and that the appeal was in time. (Brockett v. Brockett, 2 How. 240.) This case appears to us to be in point. The application to reopen a decree is substantially a petition for rehearing. At all events, the final judgment is as clearly suspended in one case as in the other. Whether this construction is right or wrong, it is authoritative, and must control the decision of this motion.

It follows that the appeal is in time and that the motion for a remittitur must be denied, and it is so ordered.

Mr. Justice Rhodes did not express any opinion.