Supersedeas is an order by an appeals court commanding a lower court not to enforce or proceed with a judgment or sentence pending the decision on the appeal or until further order of the appeals court. The granting of a supersedeas commands the staying of a proceeding at law and prohibits the enforcement of the trial court’s judgment pending review. To secure such a stay of proceedings, it is generally necessary that the litigant secure a sufficient bond in the amount set by the trial judge[i]. For instance, if a writ of execution has issued, supersedeas is a prohibition against execution of the writ.
While supersedeas does not set aside or annul the trial court’s judgment, it does preserve the status quo of the case. Supersedeas is the appropriate remedy when it appears that a party is refusing to acknowledge the applicability of statutory provisions automatically staying a judgment while an appeal is being pursued.
The terms “stay” and “supersedeas”are sometimes used synonymously to denote some act or proceeding which suspends the enforcement of a judgment. A distinction can be drawn between the terms, in that “supersedeas” generally denotes a suspension of a judgment’s effectiveness pursuant to an undertaking as a matter of statutory right, while “stay” generally refers to a suspension of a judgment’s effectiveness by the discretionary act of the trial or appellate court. A discretionary stay issued by the appellate court rather than the trial court is sometimes referred to as a supersedeas[ii].
Although, the mere taking of an appeal generally does not operate to stay enforcement of or execution upon, a judgment, in some jurisdictions it is provided by statute that the mere filing of a notice of appeal operates to stay execution upon the judgment, without any judicial action, or that execution on a judgment is stayed pending appeal where the appellant is the state, a political subdivision thereof, or an agency or officer of either. An appeal to the United States Supreme Court does not act as a stay[iii].
However, the execution and enforcement of a final judgment or decree which is subject to review by the U.S. Supreme Court on writ of certiorari may be stayed for a reasonable time to enable the party aggrieved to obtain such a writ. Where, pursuant to statute, an appeal has the effect of a stay, in such cases, an application for supersedeas will be denied as unnecessary.
While the granting of a stay on appeal without a supersedeas bond is a matter which in some jurisdictions remains within the trial court’s sound discretion, at least in extraordinary circumstances where alternative means of securing the judgment creditor’s interest are available.
Statutes governing supersedeas generally require that the party seeking to have the judgment stayed must file a bond, or provide some other form of security, to the nonappealing party or parties. A cash deposit may be accepted in some jurisdictions. The amount or nature of the bond or security may be within the discretion of the court or strictly prescribed by statute, with no discretion residing in the trial court to alter the amount or nature of the security.
In any event, the purpose of a supersedeas bond is to protect nonappealing parties by maintaining the status quo during the appeal and insuring that those who have obtained the judgment under review will not be prejudiced by a stay of the judgment pending final determination of the appeal. Thus, the amount of a supersedeas bond typically takes into account the amount needed to satisfy the judgment appealed from, as well as costs, interest, and any damages which might be caused by the stay pending appeal[iv].
[i] In re Estate of Taylor, 539 So. 2d 1029 (Miss. 1989)
[ii] Scullion v. Wisconsin Power & Light Co., 2000 WI App 120 (Wis. Ct. App. 2000)
[iii] Meeker v. Stuart, 188 F. Supp. 272 (D.D.C. 1960) [iv] Meeker v. Stuart, 188 F. Supp. 272 (D.D.C. 1960)