EX PARTE IN THE MATTER OF FRANKLIN RANSOM AND UZZIAH WEEMAN v. THE MAYOR, ALDERMEN, AND COMMONALTY, OF THE CITY OF NEW YORK.

THIS was a motion made by Mr. Keller to issue to the Circuit Court of the United States for the southern district of New York a peremptory writ of mandamus, commanding it to carry into execution a judgment which had been entered upon the records of the court, or to issue an alternative writ of mandamus, commanding the judgment to be carried into execution, or cause to be shown why it was not done.

There were numerous affidavits filed in the case, to show the course pursued by counsel, and arrangements between them; but a brief statement of facts will serve to explain the ground upon which the motion rested.

On the 24th of December, 1856, a verdict was rendered in the Circuit Court in favor of Ransom and Weeman, against the corporation of New York, for twenty thousand dollars, and one thousand four hundred and fifty-eight dollars and twenty-five cents costs. The ground of recovery was the infringement of a patent right. During the trial, several exceptions were taken by the defendants to the rulings and charge of the court. Notes were taken by reporters, and a memorandum stated, that to set aside the verdict and obtain a new trial this case was made, with leave to convert the same into a bill of exceptions.

Things remained in this condition, without any very material change, until the 12th of December, 1857, when the plaintiffs entered up judgment for the amount of the verdict and costs. On that day, the judge, in consequence of an affidavit, ordered that all proceedings in the suit should be stayed till the 15th of December, and until the decision of any motion which may be then made, or at such other time as said court may direct, to vacate any judgment which may be entered in this action, and allow the defendants an opportunity to make a motion for a new trial therein.

On the 19th of December, the court, after argument, passed an order to vacate the judgment on payment of the costs up to that time, and that the defendants have leave to turn the case into a bill of exceptions. The argument for a new trial was directed to take place by the 9th of January.

A few days afterwards, the case was settled by the judge who presided at the trial when the verdict was rendered. When the argument came on for a new trial, the motion was overruled, but leave was granted to the defendants to turn the case thus settled into a bill of exceptions, in order that it might come up to this court.

Thereupon the plaintiffs issued an execution upon the judgment, and placed it in the hands of the marshal for collection.

The defendants then moved that all proceedings founded on the judgment of the 12th December be stayed, and that the plaintiffs enter up a new judgment and file a new iudgment record, so that the case might be brought to this court. The plaintiffs alleged that the payment of the costs by the defendants up to the 19th of December was a condition precedent to the vacating of the judgment; and as the costs were not paid during the term of the court, the condition was not complied with, and the judgment was revived without any further order of the court.

The court, on the 20th April, 1858, ordered that all proceedings founded on the judgment of 12th December be stayed; that the plaintiffs be required to enter up a new judgment and file a new judgment record, so that the case might, on such new judgment, be brought up to this court.

In this state of things, the motion was made in this court for a rule to show cause why a mandamus should not be issued, to direct the court to set aside the order vacating the judgment.

Mr. Justice NELSON delivered the opinion of the court.