Howe v. Farmers & Merchants Bank

Decision Date26 January 1932
Docket NumberCase Number: 20527
Citation155 Okla. 284,8 P.2d 665,1932 OK 55
PartiesHOWE et al. v. FARMERS & MERCHANTS BANK et al.
CourtOklahoma Supreme Court
Syllabus

¶0 1. Appeal and Error--Liability on Undertaking to Stay Execution of Money Judgment Regardless of Time of Filing or Whether Appeal Perfected.

If an undertaking to stay execution of a money judgment is approved and filed in the office of the court clerk after the expiration of the time fixed for such filing in an order extending the time within which to have the case-made settled and signed and proceedings in error filed in the Supreme Court, so that it does not operate solely of its own force to stay execution pending the perfection of the appeal, if, subsequent to such filing, a stay of execution is obtained by a court order, there is liability on the undertaking, regardless of whether a petition in error is ever filed.

2. Same--Inherent Power of Trial Court to Permit Filing of Stay Bond Though Time Fixed for Perfecting Appeal Has Once Expired.

Even though the time fixed in an order extending the time for perfecting an appeal, within which an undertaking to stay execution on a money judgment may be approved and filed to stay execution pending the perfection of the appeal, has once expired, the trial court still has inherent power to make a further order permitting the filing of an approved undertaking to operate as a stay of execution pending perfection of the appeal.

3. Same--Right to File Undertaking Without Order of Court.

To stay execution on a money judgment an order of the trial court is necessary only when a stay is desired as a matter of right pending perfection of an appeal; the statutes provide for stay of execution on such a judgment as a matter of right and without an order, when the petition in error has been filed and an undertaking satisfying the requirements of the statutes has been filed; and an approved undertaking may be filed without an order of the court after the filing of the petition in error, the appeal being undetermined and the judgment being unexecuted.

4. Same--Liability on Undertaking Though Filed After Time Fixed by Order of Court and Though Appeal not Perfected.

When the time fixed by order of the trial court within which an undertaking can be filed to operate as a stay of execution upon a money judgment pending perfection of an appeal has expired and, without a further order of the court and before a petition in error is filed, an undertaking is filed which is not operative to stay execution as a matter of right until the petition in error is filed or until an order of the court is obtained making it effective prior to the filing of the petition in error, yet, if after the filing of the undertaking and until the expiration of the time allowed by law for filing of a petition in error the judgment creditor takes no proceedings, or no further proceedings than have been taken prior to the time of the filing of the undertaking to cause collection of the judgment by execution, upon failure to file a petition in error within the time allowed by law, the undertaking is valid and enforceable.

Appeal from District Court, McIntosh County; E. E. Ammons, Special Judge.

Action by the Farmers & Merchants Bank against R. D. Howe et al. on an undertaking to stay execution on a money judgment. Judgment for plaintiff, and defendants appeal Affirmed.

R. D. Howe and E. C. Hopper, Jr., for plaintiffs in error.

Clark Nichols, Jack Nichols, Turner & Turner, and H. B. Paris, for defendants in error.

SWINDALL, J.

¶1 This is an action on an undertaking to stay execution on a money judgment. Judgment for plaintiff, and defendants appeal.

¶2 The undertaking to stay execution was filed in case No. 4142, in the district court of McIntosh county. In that case a money judgment had been rendered for the plaintiff December 17, 1924. After the expiration of the period granted to the defendants within which to file an approved undertaking which would be operative to stay execution pending the perfection of the appeal, the plaintiff sued out an execution under which a levy was made upon real estate, which was advertised by the sheriff to be sold April 13, 1925. On April 6, 1925, without a further order of the trial court, an undertaking in statutory form was approved by the court clerk and was filed in the case. The plaintiff then informed the sheriff that an undertaking had been filed and instructed him not to proceed with the sale. The plaintiff's attorney testified that no further proceedings were taken or contemplated to enforce collection of the judgment by execution after he learned of the filing of the undertaking.

¶3 The defendants claim that the undertaking has no validity and that they procured a stay of execution by order of this court in an appellate proceeding, numbered 16459. 114 Okla. 118, 248 P. 318. They claim that the plaintiff disregarded the undertaking and that for that reason they applied for and obtained the order for a stay. They contend that the stay was granted without an undertaking. They also contend that no petition in error was ever filed to reverse that judgment.

¶4 To understand all of the contentions, it is necessary to consider a more complicated set of facts.

¶5 On the day the trial court rendered judgment in case No. 4142, it also rendered judgment for the same plaintiff and against the same defendants in another action, case No. 4141, an action to foreclose a mortgage. That was December 17, 1924. The record on appeal was filed in this court May 29, 1925. In this court, in case No. 16459, it appears that the defendants had filed only one petition in error, a petition in error to reverse the foreclosure judgment. A case-made had been settled and signed in each case, but without authority the defendants had combined them and had filed the altered record in this court, together with a petition in error seeking to reverse the foreclosure judgment and with a motion to consolidate the cases on appeal, but with no petition in error seeking to reverse the money judgment rendered in case No. 4142.

¶6 No undertaking to stay execution of the foreclosure judgment had been filed, and the stay order made by this court was made on June 16, 1925, just about the last day of the six months' stay operative under the waiver of appraisement in the mortgage.

¶7 The order staying execution which was made by this court was an order that "execution in the above cause be, and same is hereby stayed pending final disposition of this cause." The order made no reference as to terms and was silent as to an undertaking. The defendants claim that the stay order stayed execution upon the money judgment and at the same time deny liability because no petition in error was filed to reverse that judgment. The plaintiff denies that application was ever made to stay execution on the money judgment, and claims that the application was merely to stay execution on the foreclosure judgment. If we consider that the order operated to stay execution on the money judgment, we cannot see that it constitutes a defense in this action. The stay order makes no reference to an undertaking, and we cannot conceive that this court would undertake to grant a stay of execution upon a money judgment without requiring an undertaking unless it was informed of the fact that one had been given. Further, as will be seen, the statutory provision that an undertaking shall not operate as a stay of execution until a petition in error has been filed has only to do with the effect of the undertaking in effecting a stay of execution as a matter of right. It was never within the contemplation of the law that an undertaking could be filed and approved and that a subsequent stay order could be obtained, whether from the trial court or from this court, without liability upon the undertaking. The judgment debtors having filed an approved undertaking, and having obtained a stay as a matter of right, would certainly be liable upon the undertaking, and the requirement that the petition in error be filed would have no application, as that provision was intended only to deny effect to the mere filing and approval of the undertaking. Further than that, it would seem clear that since the judgment debtors only obtained an order to stay execution "in the above cause," they could not deny the pendency of the cause in this court and could not, therefore, deny the filing of the petition in error, which would be merely an application of the common doctrine of estoppel by accepting the benefit of an order or judgment. But it is unnecessary to base the holding upon an estoppel or to base it upon anything more than the broad ground that if an undertaking has been filed and a legal stay is obtained by order of a court, the law does not contemplate that under such conditions there shall be no liability upon the undertaking, and it is then immaterial whether a petition in error is filed or not.

¶8 But it appears that the appeal was dismissed as duplicitous, the foreclosure case not having been properly appealed, although a petition in error had been filed to reverse it, because the record had been altered without authority; and the other case was not properly appealed because no petition in error had been filed to reverse the judgment. In the opinion dismissing the appeal it was clearly recited that no petition in error had been filed to reverse the judgment in case No. 4142, and that being so, if we conclude that the stay order was not applied for to stay execution upon that judgment, and that, as said by the plaintiff, the application was merely to stay execution upon the foreclosure judgment, which is the most favorable position we can take for the defendants, for if the stay order did apply to the money judgment there was a clear liability, what is the law applicable to such a condition, where the undertaking is filed after the time fixed for filing of the undertaking to obtain a stay pending...

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  • Kahre v. Kahre
    • United States
    • Oklahoma Supreme Court
    • November 28, 1995
    ...128 P.2d 448, 449 (1942); State v. Fidelity & Deposit Co. of Maryland, 179 Okl. 437, 66 P.2d 85, 87 (1937); Howe v. Farmers' & Merchants' Bank, 155 Okl. 284, 8 P.2d 665, 667 (1932); In re Epley, 10 Okl. 631, 64 P. 18, 20 (1901).8 Epley, supra note 7.9 Wilks, supra note 7 at 763; see also Bu......
  • Haffner v. Commerce Trust Co.
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    ...or stay of execution as a good consideration for the obligation of those executing said instrument. As was said in Howe v. Farmers & Merchants Bank, 155 Okla. 284, 8 P.2d 665:"* * * The court has not been concerned with whether the stay was obtained as a matter of right rather than as a mat......
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    ...v. McClain et al. (1915) 50 Okla. 738, 150 P. 666; Scott v. Joines et al. (1918) 71 Okla. 89, 175 P. 504; Howe et al v. Farmers &Merchants Bank et al. (1932) 155 Okla. 284, 8 P.2d 665. When the appeal was dismissed, the function of the supersedeas bond expired, and thereupon the right of pl......
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