108 U.S. 153

'Now, if the said claimant shall and will truly abide by all orders, interlocutory or final, of said court, and of any appellate court in which the said suit may be hereafter depending, and shall fulfill and perform any judgment or decree which may be rendered in the premises, and also pay all costs, etc., this stipulation shall be void, otherwise in force, and execution may issue by virtue thereof at one and the same time against any or all the parties to this stipulation.'

A decree was entered against the steamer in the district court. From that decree an appeal was taken to the circuit court for the district, where, on the fourteenth of October, 1881, it was decreed 'that the libelant recover for himself and the other parties in interest, from the respondent, Samuel Jackson, and his stipulators, Joseph D. Potts, William G. Warden, Edward N. Wright, and James A. Wright, his or their damages for the collision mentioned in the libel, * * * aggregating, in all, the sum of $51,594.14.' The decree was also entered as a lien against the real estate of the stipulators.

Upon the rendition of this decree an appeal was taken by the claimant to this court, the petitioners signing a supersedeas bond as sureties. The petitioners being seized of real estate in the district, applied to the circuit court to vacate the decree against them, on the ground that it was inadvertently entered and caused a cloud on the titles to their property. The court declined to make the order, and this application is now presented for a mandamus to the judges of the court requiring it to be done.

Morton P. Henry, for petitioner.

[Argument of Counsel from pages 155-156 intentionally omitted]

WAITE, C. J.

It is not stated in the petition that the stipulation was executed under the provisions of section 941 of the Revised Statutes, but for the purposes of this application we assume it was, there being no representation to the contrary. That section provides in express terms for a return of the stipulation to the court, and that 'judgment thereon against both principal and sureties may be recovered at the time of rendering the decree in the original cause.' It would seem as though nothing more was needed to show the power of the court to include the stipulators in the original decree. Under section 1007 of the Revised Statutes, no execution can issue until the expiration of 10 days after the entry of the decree. In this respect these decrees are like others. An appeal with supersedeas stays execution against the stipulators as well as the principal. Therefore, there is nothing in the decree inconsistent with the provisions in the stipulation in respect to the time when the execution may issue.

It is no doubt within the power of the court to postpone a decree against the sureties until after the time for appeal by the principal has expired, and then to proceed only on notice. Such is the practice in some of the circuits, but we can find nothing in the statute which makes this imperative. In the case of The New Orleans, 17 Blatchf. 216, to which our attention has been directed by the counsel for the petitioners, the proceeding was against the sureties for the claimants, on their appeal from the district court to the circuit court, and the court refused to enter the judgment on such a bond until after the time for perfecting an appeal to this court had expired. That was an entirely different question from the one presented here upon a stipulation and entered into under section 941.