Heizer v. Pawsey
| Decision Date | 01 July 1891 |
| Parties | D. N. HEIZER v. ELIZABETH PAWSEY |
| Court | Kansas Supreme Court |
Error from Barton District Court.
THE opinion contains a sufficient statement of the nature of the action, and the material facts.
Judgment affirmed.
Elrick C. Cole, for plaintiff in error.
James W. Clarke, for defendant in error.
OPINION
This was an action upon a bond executed by the plaintiff in error in an action commenced by the defendant in error against H M. Fordham, in which an order of arrest had been procured. The bond sued on had been given in the district court of Barton county, to obtain the discharge of Fordham from arrest. The original suit of Elizabeth Pawsey against H. M. Fordham was prosecuted to judgment October 15, 1886, and the order of arrest was sustained by the district court. On the 24th day of January, 1887, H. M. Fordham filed in this court a petition in error and case-made, with a bond for costs, wherein he sought to have reviewed certain alleged errors in the case of Elizabeth Pawsey against H. M. Fordham, and filed a supersedeas bond on the 7th of March following, in the office of the clerk of the district court, to stay the issuance of an execution on the judgment rendered until that case could be determined in this court. This action was commenced after the filing and approval of the supersedeas bond, and was, therefore, pending in the district court of Barton county at the same time the original case was for hearing in this court.
It is contended by the plaintiff in error, that the approval of the undertaking, under §§ 551 and 552 of the code, stayed all proceedings until the cause should be finally determined in this court. The condition of the bond sued on was, that "the said H. M. Fordham should in his own proper person appear, if judgment should be rendered against him, and render himself amenable to the process of the court thereon." It was established that an execution was issued upon the judgment against the body of Fordham, and placed in the hands of the sheriff, who returned the same on the 5th day of March, 1887, indorsed: "Not found." This was done before the approval of the supersedeas bond. This action was commenced on the 7th day of May, 1887, but was not tried in the district court until the judgment in the original case of Pawsey against Fordham had been affirmed by this court.
It is insisted by the defendant in error that the pendency of the original...
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Goetz v. Goetz, 40459
...the filing of a bond to supersede a child custody order, Central Branch U. P. R. Co. v. Andrews, 34 Kan. 563, 9 P. 213; Heizer v. Pawsey, 47 Kan. 33, 35, 27 P. 125, and the legislature wisely deemed that child custody decisions should be left to the determination of the district court pendi......
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State v. Hess
...is in accord with the earlier cases. (See Soper v. Medberry, 24 Kan. 128; [Central Branch U. P. R. Co.] v. Andrews, 34 Kan. 563 , Heizer v. Pawsey, 47 Kan. 33 ; Baxter v. Clark, 118 Kan. 281; [City of] Topeka v. Smelser, 5 Kan.App. 95 .) The law is thus settled that an appeal in a civil cas......
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Armstrong v. Mayer
...however, is not to deprive the trial court of all power, but only to stay execution and prevent enforcement of the decree. Heizer v. Pawsey, 47 Kan. 33, 27 P. 125; New Brighton & N. C. R. Co. v. Pittsburgh, Y. & C. Co., 105 Pa. 13. We therefore recommend that the decree be reversed and the ......
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State v. Alexander
...giving of such bond has no other force or effect on the judgment than simply to prevent its enforcement by execution, citing Heizer v. Pawsey, 47 Kan. 33, 27 P. 125, where it was held that proceedings in error and the giving a supersedeas bond do not prevent the maintenance of an action upo......