
    Henry F. Russell, Mayor, for use, etc., plaintiff in error, vs. Michael O’Dowd et al., defendants in error. Michael O’Dowd, plaintiff in error, vs. Henry F. Russell, Mayor, for use, etc., et al., defendants in error.
    (Atlanta,
    January Term, 1873.)
    Trippe, Judge, did not preside in these cases.)
    1. Supersedeas — Stay of Execution — Not Excepted to — Valid.—
    Where five or six suits were pending in the name of the Mayor of Augusta for the use of various parties, against the principal and securities of an auctioneer’s bond, the same defenses existing in each case, and one of the cases was tried and a verdict had, and the case carried to the Supreme Court of this State by bill of exceptions, with a supersedeas, and/at the same term of the Superior Court at which this verdict was taken, the Court permitted verdicts and judgments in all the cases to be taken, and passed an order, without objection from any of the parties, directing that execution should not issue in any of said cases until the case carried to the Supreme Court was disposed of, and the case having been decided in the Supreme Court, was, by writ of error, carried to the Supreme Court of the United States:
    Held, That the order staying execution in said cases, not having been excepted to, is still operative until the case is disposed of by the Supreme Court of the United States, or until said order is set aside on a motion for that purpose.
    2. Same — Jurisdiction—Of State Court — After When it appears
    from the papers on file with the clerk of the Superior *Court of this'State that, in a case carried by writ of error from this Court to the Supreme Court of the United States, proper steps have been taken to supersede the judgment, the Courts of the State have no longer jurisdiction of the case until the same is disposed of by the appellate Court, or until, by order of said Court, the execution is permitted to proceed for want of a supersedeas or otherwise.
    3. Injunction — Illegal.—The remedy at law, by affidavit of illegality, is adequate to stop the progress of the execution, and a bill to enjoin them was properly demurred to, as the defendant has a complete and' adequate remedy at law.
    
      Supersedeas. United States Courts. Jurisdiction. Illegality, Before Judge Twiggs. Richmond Superior Court. January Term, 1872.
    Injunction. Illegality. Before Judge Gibson. Richmond county. At Chambers. August 21st, 1872.
    Henry F. Russell, Mayor of the city of Augusta, for the use of Harper C. Bryson, brought an action of debt against Clarence V. Walker, principal, and William C. Jones and Michael O’Dowd, securities, on a bond executed by said Walker as vendue master of said city. Three other suits of a precisely similar character were brought by said Mayor for the use, respectively, of Wik liam Glendenning, administrator, the Georgia Railroad and Banking Company, and of the Assignee of Swift & Horsey, bankrupts. Upon the verdict obtained against the .securities in Bryson’s case, judgment was entered, execution issued and was levied upon the property of Michael O’Dowd. An affidavit of-illegality was filed thereto. The issue thus formed was submitted to the Court upon the following agreed statement of facts:
    “Clarence V. Walker was elected, gave bond, and qualified as auctioneer of the city of Augusta, under the Act of December 24, 1827. Four suits were brought on his bond, in Richmond Superior Court, for money collected from the sale of goods, which was not paid over.
    “At January term, 1871, of that Court, the first case, in favor of William Glendenning, administrator, was tried. Defendants *pleaded in this case the discharge of Walker as'a bankrupt, and a release thereby of the securities.
    “On a hearing thereof, the Court discharged Walker, holding the securities liable under the 33d section of the Bankrupt Act, and a verdict was entered against them.
    “In the other three cases no plea was filed, counsel for the plaintiff recognizing the fact that the defense was the same in all the cases, and waiving the filing of pleas.
    “The Judge allowed verdicts to be taken against the securities in these other three cases, but ordered as follows: ‘That execution be stayed for thirty days from the final adjournment of the Court, and if a bill of exceptions is filed therein, until the decision of the same in the case of Henry F. Russell, for the use of William Glendenning, vs. C. V. Walker et al., in the Supreme Court, be made in that Court, the parties to the said cases reserving the same rights as if each and all of these cases had also been taken up under bills of exceptions, and a decision of the Supreme Court in the Glendenning case to control each case.’
    “To the decision in the Glendenning case both parties to that suit excepted, O’Dowd giving as security on his supersedeas bond in that case, Peter Sheron and Pattrick H. Primrose, but filing no supersedeas bonds in the other cases.
    “The case was heard at the July term, 1871, of the Supreme Court, J. P. Carr and James C. C. Black, Esqs., appearing of counsel for O’Dowd, H. W. Hilliard, Esq., of counsel for Glendenning, administrator, and Frank PI. Miller, of counsel for H. C. Bryson, Georgia Railroad and Banking Company, and the Assignee of Swift & Plorsey, the three plaintiffs whose executions were suspended until the decision by the Supreme Court of Georgia.
    “On the 31st day of October, 1871, the Supreme Court of Georgia affirmed the decision of Richmond Superior Court, holding the securities liable, but reversed the decision relieving Walker. The remittitur from the Supreme Court was filed in Richmond Superior Court, November 3, 1871.
    “On the 10th of November, 1871, in the Glendenning case, *Jones & Walker having declined to join therein, Michael O’Dowd filed in the Supreme Court of Georgia a writ of error to December terra, 1871, of the Supreme Court of the United States, and a bond, dated November 7th, 1871, approved by Chief Justice Lochrane, for $913 46, purporting to be in conformity to section twenty-second of the Act of Congress, of September 24th, 1789, which was executed in Richmond county, Georgia, in the presence of James C. C. Black, Esq., one of the counsel of O’Dowd, in this Court, who acted as a Notary Public in taking the bond whereon Peter Sheron and Patrick H. Primrose signed as securities. A copy of the writ of error was filed in the clerk’s office of Richmond Superior Court, November 16th, 1871, and one in the Supreme Court of Georgia, November 10th, 1871.
    “No writ of error or bond was filed by O’Dowd in, or reference made in the proceedings had by him, to the other cases in which executions, by order of Richmond Superior Court, were to be stayed until the decision of the Supreme Court of Georgia. No bond or writ of error has ever, in any case, been filed in Richmond Superior Court.
    “A motion has been made in the Supreme Court of the United States to docket and dismiss the Glendenning case, which has been argued, but not decided. On the 16th January, 1872, judgment was entered against C. V. Walker, pursuant to remittitur from the Supreme Court of Georgia, and a return of nidia bona had thereon.”
    Counsel for plaintiff moved to dismiss the affidavit of illegality, under tire law and the facts agreed on:
    1st. Because no bond had been filed with the affidavit.
    2d. Because the order of Richmond Superior Court, set forth in said affidavit of illegality, only suspended the enforcement of the above H. fas. until a decision of the Supreme Court of Georgia in the Glendenning case.
    3d. Because the order of the Superior Court of Richmond county, set forth in the affidavit of illegality, (the decision of the Supreme Court in the Glendenning case having been pronounced,) is now void and of no effect.
    *4th. Because the said order of the Superior Court of Richmond county was entirely unwarranted, without authority of law, and a usurpation of authority, except so far and for such length of time as the plaintiffs chose to abide by it.
    5th. Because said order of Richmond Superior Court was a virtual denial of the right of plaintiffs to have security on stipersedeas bonds, while the case of Glendenning was pending in the Supreme Court, and can no longer be enforced.
    6th. Because the persons signing as securities on the supersedeas bond, dated November 7, 1871, and filed in the clerk’s office of the Supreme Court, at Atlanta, November 10th, 1871, are the same persons who are sureties on the supersedeas bonds filed in the Glendenning case in the clerk’s office of Richmond Superior Court, April 28th and May 16th, 1871, and being already bound by the judgment of the Supreme Court of Georgia, the new bond signed by them is a nullity.
    7th. Because no copy of the writ of error to the Supreme Court of the United States was filed in the clerk’s office of Richmond Superior Court, where the records in the case are kept, until Tuesday, 16th of- November, 1871, when the same should have been filed within ten days, (Sunday exclusive,) from October 31, 1871, pursuant to section.22. Act of Congress of September 24, 1789.
    8th. Because no citation was served on Glendenning, administrator, twenty days prior to the December term of the Supreme Court of the United States, as required by section 22, Act of Congress, September 24, 1789.
    9th. Because executions can issue at any time in Georgia, (Code, 3569,) and where cases are affirmed by the Supreme Court, on filing the remittitur: Code, 4224. The Act of Congress of September 24, 1789, section 23, relating only to practice in the United States Court.
    The Court (Judge Twiggs) sustained the affidavit of illegality, and overruled the motion. Whereupon, plaintiff in execution excepted.
    Upon the verdicts rendered in the cases of the Mayor, for the use of the Georgia Railroad and Banking Company, and *the Mayor, for the use of the assignee of Swift & Horsey, bankrupts, judgments were entered, and executions issued and were levied upon the property of O’Dowd. He filed his bill, setting forth, substantially, the same facts as were agreed upon on the trial of the issue formed upon the affidavit of illegality in the Bryson case, praying that the aforesaid plaintiffs in fi. fa. be enjoined from enforcing said executions, or either of them, until the case of the Mayor, for the use of William Glendenning, administrator, shall have been finally heard and adjudicated.
    The Chancellor (Judge Gibson) refused the injunction, and complainant excepted.
    These two cases were argued and decided together in the Supreme Court.
    Frank H. Mieeer, by brief, for the plaintiff in error in the first case, and for the defendant in error in the second.
    Joseph P. Carr, by brief, for the defendant in error in the first case, and for the plaintiff in error in the second.
   McCay, Judge.

It may be true, that the order directing these cases to be stayed until the bill of exceptions in the first case was disposed of was not a wise and just order, though of that we express no opinion. It was not excepted to and it was the judgment of a Court with full jurisdiction, and until it is set aside by proceedings for that purpose, it is to be treated as conclusive between the parties. We suspect, too, that the order was by consent, though of that we are not informed. At any rate, it would be contrary to first principles to permit a judgment between the parties by a Court having jurisdiction of the whole subject, to be treated as null in a collateral way, without any charge of fraud. We are, therefore, clear that the plaintiffs cannot go on to execute their judgments in the face of this order. We are clear, too, that this order is still operative. It appears from the record that the bill of *exceptions was filed in the Glendenning case, and that the condition of the order was complied with. It appears further, that there has been no final decision of the Glendenning case, the judgment of this Court having been carried by writ of error to the Supreme Court of the United States.

Without question there has been a writ of error. Whether it is strictly regular, whether it has been properly served and filed, etc., are not questions for the Superior Court of Richmond county to pass upon. The case is on the docket of the Supreme Court, it has jurisdiction of it, and all such questions as it seems to us must, in the nature of things, be made there. It appears, too, that proper steps have been taken to supersede the judgment ■of this Court. Whether the officer who approved the bond failed to inquire properly into the sufficiency of the sureties, whether he has taken such a bond as adds nothing to the security of the plaintiff in the judgment, is, in our opinion also, not a question for the Superior Court of Richmond county, nor is it for this Court. Upon the record it appears that the Act of Congress has been complied with, whether the record in the Federal Court shows the same thing we do not know. But until some judgment is had by that tribunal, permitting the judgment of this Court to go on, it is by the record stayed. We have this to say in addition. The judgment of this Court was that the principal debtor was liable. Fven if there has been no supersedeas •of that judgment, we should question the right of the plaintiffs to go on against the two securities with the executions. If I am not mistaken, the effect of the judgment of this Court was to grant a new trial. And the sureties have a right to have the principal joined with them in the judgment and execution.

As the remedy by affidavit is ample and complete, there was no necessity for a bill, and we think the Judge did right in refusing an injunction.

Judgment affirmed.  