North Western Express Co. v. Landes

6 Minn. 564

• Court: Supreme Court of Minnesota
• Decided: December 15, 1861
• Status: Published

Opinion

By the Court —

EiaNdeau, <1.

— The issuance of a writ of error and putting in bail did not operate as a supersedeas, or even stay of an execution, which had been levied before the issuance of the writ, but the sheriff could proceed to a sale as if no writ of error had been sued out. Blanchard vs. Myers, 9 Johns., 66; Merriton vs. Stevens, Willes’s Rep., 271; Kinnie vs. Whitford, 17 Johns. 34; Delafield vs. Sandford, 3 Hill, 473; Graham’s Practice, 334-5. The statute of this State concerning the effect of a writ of error and bond upon an execution, is as follows : “No execution shall be issued thereafter upon the judgment complained of during the pending (pendency) of the writ of error, and if execution shall have been already issued, the clerk shall make and sign a certificate of the issuing of the writ of error and the filing of the bond; and after notice of such certificate to the officer holding such execution, all further proceedings thereon shall be stayed. Comp. Stats., 623-4, seo. 25. The notice or certificate issued by the clerk in this case was not, perhaps, exactly what the statute contemplates, but as it conveyed notice to the sheriff that a writ of error had issued and bond been filed, it was sufficient to stay the execution.

The stay contemplated by the act does not'supersede the execution so as to annul what has been done under it, but simply checks the sheriff from proceeding further. The sheriff may retain the property levied upon until the decision of the Court above, or the order of the Court.

The motion is denied, and sheriff discharged.