
    Sweigard v. Consumers’ Ice Manufacturing and Coal Company.
    
      Execution— Stay of execution^-Surety—Mandamus.
    
    Where a defendant in a judgment has taken an appeal to the Superior Court and has (hereby superseded an execution which had issued, he cannot after the judgment has been affirmed, and after seven months have expired from the entry of the judgment, have a stay of execution for thirty days, by entering security as provided in section 4 of the Act of June 16, 1836, P. L. 755.
    Rule for mandamus against Hon. Robert N. Willson, Judge of Common Pleas No. 4, Philadelphia County, to compel him to approve surety for a stay of execution under the Act of June 16, 1886, section 4, No. 470, Miscellaneous Docket No. 1.
    
      From the record it appeared that judgment was entered against defendant on June 5, 1900. On June 12, 1900, an appeal was taken to the Superior Court, which appeal superseded an execution which had issued. On November 21, 1900, the judgment was affirmed by the Superior Court, and on the same day a petition was presented to Hon. Robert N. Willson to approve surety for a stay of execution. This petition was refused.
    Judge Willson in his answer to the petition for a rule for mandamus stated that his reason for refusing the application was, that in his judgment there was no authority given by the statutes, or in the law of Pennsylvania, to allow the same.
    
      T. Fernley Brooks and William J. Wagenknight, for the rule.
    —If the appeal acted as a supersedeas then all proceedings in the lower court were stayed, and the thirty days ceased to run against the petitioner upon the issuing of the certiorari: Rochester Bank v. Emerson, 10 Paige (N. Y.), 115; State v. Clerk of Passaic, 1 Dutcher (N. J.), 355; New Brighton, etc., R. R. Co. v. Pittsburg, Youngstown, etc., R. R. Co., 105 Pa. 13 ; Walden v. Berry, 48 Pa. 456; Allen, Ball & Co. v. Savannah, 9 Ga. 286 ; Kitchen v. Randolph, 93 U. S. 87; Draper v. Davis, 102 U. S. 370; Keyser v. Farr, 105 U. S. 265.
    
      Alfred Driver and J. Warren Qoulston, for respondent.—When
    the judgment was entered and the execution issued, the defendant had choice of two forms of relief, viz: to appeal or to enter bail for stay of execution: He chose the former and by appealing, waived his right to enter bail for stay of execution: Erie City Bank v. Compton, 27 Pa. 195.
    January 19, 1901:
   Per Curiam,

Rule discharged.  