
    Alabama & Vicksburg Railway Co. v. Frederick Bolding.
    Appeal. Supersedeas. Discharge by supreme court. Code 1880, § 1421.
    It is only where from the nature of the ease supersedeas on appeal is not allowable, that a motion under code 1880, § 1421, can be made in the supreme court to discharge a supersedeas. If the case be one in which, viewed alone by the record, the law allows a supersedeas, objections relating to the merits-of the appeal, or relied on in bar of it, must be availed of when the case is heard in its order, and not on motion to discharge the supersedeas.
    
    
      Motion in the supreme court.
    This cause has been before the court at the present term on the appeal of the Alabama & Vicksburg Railway Co., from the judgment of the circuit court refusing to vacate a judgment, and the action of the court was sustained. See A. V. By. Co. v. Bolding, ante, p. 255.
    The defendant has now appealed from the original judgment, again executing a supersedeas bond, and that appeal is before the court. Pending its consideration, appellant asked and obtained an order that the mandate upon the judgment already affirmed be withheld until the hearing of this appeal taken from the original judgment.
    This motion has been made by appellee to discharge the supersedeas and set aside the order staying.the mandate, (1) because the appeal from the order refusing to vacate the judgment and stay the execution brought into review the validity of the original judgment, and the affirmance of the-judgment on that appeal is res judicata of all errors predicated upon a proceeding on which the judgment superseded was rendered; and (2) because the appellant, by its motion in the lower court to vacate the judgment and supersede the execution has waived all the irregularities and errors assignable on appeal; and (3) because the original judgment now superseded was merged in the judgment rendered by the circuit court on the supersedeas bond.
    
      B. N. Miller and J. K. McNeely, for the motion.
    
      Nugent $ Me Willie, contra.
   Campbell, C. J.,

delivered the opinion of the court.

The object of § 1421 of the code of 1880 is to give to him whose judgment or decree is superseded the right to obtain the order of this court to discharge 1he supersedeas at any time before the appeal is returnable, so as to relieve against the superseding of a judgment or decree where the law does not allow a supersedeas; and the operatibn of the statute must be confined to cases in which, from the nature of the case, the law does not permit a supersedeas. If the case be one in which the law allows a supersedeas, and the objection to it goes to the merits of the appeal, or is founded on something in the nature of a bar to it, that cannot be a ground for action by the court under § 1421, but will be available when the case is heard on the appeal. The test is, is the judgment, decree or order appealed from and .superseded, viewed by the record of it, one in which the law provides for an appeal and supersedeas ? 'Tf so, all questions involved in the appeal must be reserved until the case is heard in its order.

Motion denied.  