MOTION TO DISMISS.

Statement of the Case.

The case is stated in the opinion.

Mr. Edgar H. Farrar and Mr. Ernest B. Kruttschnitt for the motion.

Mr. C. W. Hornor and Mr. W. S. Benedict opposing.

MR. JUSTICE MILLER: A motion is made to dismiss this cause because Charles Lafitte, the husband of the defendant in error, is not named in the writ of error as a party to the proceedings. The judgment was in favor of his wife Josephine, and he was a party authorizing her in the suit below, according to the forms of the Louisiana law, which require that the husband must be joined with the wife when she sues, whether he has any interest or not; and the plaintiff in error has served a citation on Lafitte, although he was not named in the writ of error. It may be doubtful whether Lafitte is a necessary party in this court, seeing he was not a party to the judgment. If for conformity's sake he ought to have been brought here to aid his wife in the writ of error, the citation to him is sufficient for that purpose. The motion to dismiss the case is overruled.

WESTERN AIR LINE CONSTRUCTION COMPANY v. MCGILLIS.

ORIGINAL MOTION IN A CAUSE BROUGHT HERE BY WRIT OF ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

No. 1283. Submitted April 9, 1888. Decided April 16, 1888.

The court, for reasons stated in its opinion, denies a motion to vacate a supersedeas or to make an order that the appeal bond filed in the case does not operate as a supersedeas.

THE defendants in error made the following motion:

"And now come the defendants in error in the above cause, by John S. Cooper, their attorney and counsel, and move the

Opinion of the Court.

court to vacate the supersedeas in the above cause, or for an order declaring that the appeal bond filed by appellant in said cause does not operate as a supersedeas; because the writ of error was not sued out or served within sixty days after the rendering of the judgment entered and complained of in said

cause.

"JOHN S. COOPER,

"Attorney and Counsel for Defendants in Error.”

Mr. John S. Cooper for the motion.

Mr. E. Walker opposing.

MR. JUSTICE MILLER: This is a motion to vacate what is called a supersedeas. The papers show that the writ was neither sued out or served within sixty days after the rendition of the judgment which is the subject of the writ of error: It follows as a matter of course that the writ cannot operate as a supersedeas, and we know of no motion that is necessary or proper in this court on that subject. Writs of supersedeas do not issue, unless it may become necessary from some peculiar circumstances. The statute declares that, when within sixty days, the plaintiff sues out his writ of error, files it with the clerk of the proper court, and then gives a bond within a certain time mentioned by the statute, that the bond, if approved for that purpose by the judge who grants the citation and the writ of error, shall operate as a supersedeas. It is a matter of law whether it operates as a supersedeas.

There is no evidence here of any proceeding to collect a debt which has been disregarded. At all events there is no occasion for a supersedeas.

The motion is denied.

APPENDIX.

I.

JUDGMENTS AND DECREES,

INTERLOCUTORY AND FINAL, AT OCTOBER TERM, 1887, NOT OTHERWISE REPORTED.

No. 374. ALLIS v. FREEMAN. Appeal from the Circuit Court of the United States for the Western District of Wisconsin. April 2, 1888: Dismissed, with costs, on the authority of the appellant and on motion of Mr. R. D. Mussey in behalf of counsel for appellant, Mr. F. W. Cotzhausen and Mr. R. Mason. No counsel appear. ing for the appellees.

April

No. 227. ANDERSON TWINE Co. v. Top. Error to the Circuit Court of the United States for the Northern District of Ohio. 13, 1888: Dismissed, with costs, as per stipulation. Mr. John C. Lee, Mr. Aaron Blackford, and Mr. James A. Bope for plaintiff in error. Mr. Jacob F. Burket for defendant in error.

No. 1152. BAINS v. DODGE. Error to the Circuit Court of the United States for the Northern District of Texas. February 13, 1888: Dismissed, with costs, on motion of Mr. A. H. Garland in behalf of counsel for the plaintiffs in error. Mr. Roger Q. Mills for plaintiffs in error. No counsel appearing for the defendants in

error.

No. 1300. BAird v. Baldwin. Appeal from the Circuit Court of the United States for the Northern District of Illinois. November 15, 1887: Docketed and dismissed, with costs, on motion of Mr. Eppa Hunton for the appellees. No one opposing.

No. 35. BALTIMORE AND POTOMAC RAILROAD COMPANY v. DISTRICT OF COLUMBIA. Error to the Supreme Court of the District of Columbia. October 26, 1887: Dismissed, with costs, for failure to file the transcript of the record during the term to which the writ of error was returnable. Mr. Enoch Totten for the plaintiff in error. Mr. Henry E. Davis for the defendant in error.

No. 91. BALTZER v. BISCHOFFSHEIM. Appeal from the Circuit Court of the United States for the Southern District of New York. October 20, 1887: Dismissed as per stipulation. Mr. C. A. Seward and Mr. Charles M. Da Costa for appellants. Mr. Joseph H. Choate for appellee.

No. 852. BARKER V. KANSAS AND GULF SHORT LINE RAILROAD COMPANY. Appeal from the Circuit Court of the United States for the Eastern District of Texas. May 3, 1888: Dismissed, with costs, as per stipulation, on motion of Mr. Stephen G. Clarke in behalf of counsel. Mr. E. Ellery Anderson for appellants. Mr. H. Chilton for appellees.

No. 1405. BATCHELOR v. KIRKBRIDE. Error to the Circuit Court of the United States for the District of New Jersey. April 2, 1888: Docketed and dismissed, with costs, on motion of Mr. J. Hubley Ashton for defendant in error. No one opposing.

No. 939. BAXTER MOUNTAIN GOLD MINING COMPANY V. PATTERSON. Error to the Supreme Court of the Territory of New Mexico. May 3, 1888: Dismissed, with costs, on motion of Mr. J. H. Hoffecker, Jr., for the plaintiff in error. No counsel appearing for the defendants in error.

No. 232. BELL TELEPHONE COMPANY OF MISSOURI v. MISSOURI, ex rel. BALTIMORE AND OHIO TELEGRAPH COMPANY. Error to the Circuit Court of the United States for the Eastern District of Missouri. April 18, 1888: Dismissed, with costs, on the authority of the plaintiff in error. Mr. Henry Hitchcock and Mr. G. A. Finckelnburg for plaintiff in error. No counsel appearing for the defendant in error.