Tyler v. Presley

Thornton, J. Application for writ of mandate to the Superior Court of the county of Sonoma, commanding said court to allow Tyler to practice law in that court.

Tyler was by an order of this court, entered in December, 1886 (71 Cal. 353), suspended from practicing law in the courts of the state for two years, and until the payment of a certain sum of money. On application to the chief jusiyce of this court, a writ of error to the Supreme Court of the United States was allowed, citation issued and served, and bond filed. It is argued that the writ of error supersedes the order of suspension, and that Tyler can still practice law until the cause is determined on error, or dismissed by the court in error, and this by virtue of the act of Congress.

There are cases where a writ of error operates as a supersedeas, and cases where it does not. This is plain from sections 1000 to 1007 of the Revised Statutes of the United States. (See latter clauses of sections cited.)

What is a siipeo'sedeas? It is a writ issued to a ministerial officer, commanding him to supersede or desist from proceeding under another writ previously or subsequently issued to him. (Abbott’s Law Diet., word Supersedeas; Burrill’s Law Diet., same word.) No writ of supersedeas need be issued under the act of Congress, for the writ of error operates as such. The service of a copy of the writ of error on the clerk would be sufficient to restrain him from issuing a writ of execution, or a like service on the sheriff would restrain him from executing it, or perhaps the court might order a writ of supersedeas in form to be issued. In Virginia the writ of supersedeas is directed to the sheriff. (See 4 Minor’s Inst., part 1, pp. 854, 855, where the form of the writ is given.)

Professor Minor, in his able work above cited, which [292]we consider high authority, says of the writ of error in the courts of the United States: “It operates as a supersedeas to prevent the successful party in the court below from proceding to enforce his judgment,” etc. (4 Minor’s Inst., part 1, p. 296.)

This plainly signifies that when a party has recovered a judgment which he can enforce by the process of the court, that a writ of érror on the proper bond being given will prevent the execution of such process.