In re Epley

• Decision Date: 08 February 1901
• Citation: 10 Okla. 631,64 P. 18,1901 OK 15
• Parties: In the Matter of the Application of C. G. EPLEY, R. I. BOYINGTON AND FRANK T. HATTER, for a Writ of Habeas Corpus.
• Court: Oklahoma Supreme Court

1901 OK 15

64 P. 18

10 Okla. 631

In the Matter of the Application of C. G. EPLEY,

R. I. BOYINGTON AND FRANK T. HATTER, for a Writ of Habeas Corpus.

Supreme Court of Oklahoma

Decided: February 8, 1901

Original Proceeding in Habeas Corpus.

Syllabus

¶0 1. WRIT OF ERROR--Supersedeas. At common law a writ of error in the appellate court operated as a supersedeas by implication, and stayed the proceedings in the lower court from the time of its allowance, without an undertaking or other security.

2. STAY--By Supreme Court. In cases where the statute makes no provision for a supersedeas, or a stay of the judgment or final order, as a matter of right, the trial court may, in the exercise of its discretion, allow a supersedeas or stay on such terms as it may prescribe for the protection of the parties, pending an appeal to the appellate court.

3. STAY--By Supreme Court. The supreme court, or any justice thereof, has the power to stay the execution or enforcement of any judgment or final order in all cases not provided for by statute, and upon such terms as may be prescribed by the court or justice thereof, granting such stay, in any case taken to said court by appeal or proceedings in error.

4. VACATING SUPERSEDEAS. Where a supersedeas or stay is improperly granted by this court or any justice thereof, on the ground that the bond is insufficient, or that there are defects in the appeal, the appropriate remedy is by motion to vacate or set aside the order granting such supersedeas or stay.

5. STAY--By Supreme Court Removes Jurisdiction. It is a well settled principle of appellate procedure, that when a case is brought within the jurisdiction of an appellate tribunal it is taken entirely out of the inferior court. The appeal necessarily removes the matter in controversy to the higher tribunal for review. When, therefore, a case has been brought to this court by appeal or proceedings in error, and a supersedeas or stay granted by the court or justice thereof, the trial court is divested of any jurisdiction in the case pending the determination of the appeal, and it has no power to enforce its judgment or final order, unless the supersedeas or stay is set aside or vacated in the appellate court.

6. MANDAMUS--Judgment Granting--Review. A judgment granting a peremptory writ of mandamus stands on equal footing with a judgment in an ordinary action at law, subject to review in the appellate court under similar conditions.

W. S. Denton, for petitioners.

George P. Rush and Houstin James, for respondent.

STATEMENT OF THE CASE.

This is an original proceeding in this court for a writ of habeas corpus. It appears from the petition, the return and the evidence submitted on behalf of the petitioners and the respondent that on November 19, 1900, Charles Loran Moore brought a certain action in the district court of Garfield county, against C. G. Epley, R. I. Boyington and J. H. Riggs, composing the board of county commissioners of Garfield county, Oklahoma Territory, and Frank T. Hatter, clerk of said county, and ex-officio, the board of canvassers of election returns of said county, to compel them by mandamus to reconvene and to correctly canvass the returns of the votes of certain precincts of said county for the office of probate judge, on the ground that said canvassing board had wrongfully refused or neglected to canvass the returns, as shown by the official returns of the judges of election in certain precincts in said county. On the 20th of November, 1900, said cause came on for hearing after due notice had been given to the respondents, and the court, after hearing the evidence and the argument of counsel on behalf of the relator and the respondent, granted a peremptory writ of mandamus, commanding the board of canvassers to reconvene on December 18, 1900, and to correctly canvass the votes as shown by the official returns of the election judges in precincts numbered five and twenty-nine, in said Garfield county, and make due return of said writ on December 22, 1900. On November 20, a motion for a new trial was filed by the respondents which was overruled by the court and exception reserved. The respondents thereupon prayed an appeal to the supreme court from the judgment of the district court granting the peremptory writ of mandamus, and also asked the court that supersedeas or stay be granted on the filing of a proper bond pending an appeal to the supreme court. The court granted the appeal but refused to stay the judgment.

On December 17, 1900, the respondents filed their petition in error in this court. On December 17, 1900, an application was made by the respondents to the Hon. Clinton F. Irwin, associate justice of the supreme court, to stay the judgment of the district court in said action pending the appeal in the supreme court, which order (omitting title) is as follows:

"Now upon the application in the above entitled action for the stay of the order and judgment of the district court of Garfield county made in said action ordering and directing said plaintiffs in error to reconvene as a canvassing board, and it appearing that said plaintiffs in error are entitled to said stay, it is hereby

"Ordered that the order made in said action by the district court of Garfield county in said action, ordering and directing C. G. Epley, R. I. Boyington and J. H. Riggs, composing the board of county commissioners of Garfield county, Territory of Oklahoma, and Frank T. Hatter, county clerk of said county, ex-officio the board of canvassers of election returns of said county, to reconvene on the 18th day of December, 1900, and recanvass the votes for James K. Beauchamp and Charles Loran Moore for probate judge, be and the same is hereby stayed, and said defendant in error, Charles Loran Moore, to acquire no rights by reason of said order pending the appeal in the supreme court, upon plaintiffs in error executing a good and sufficient bond in the sum of two hundred ($ 200.00) dollars, payable to defendant in error: Conditioned for the payment of all costs and damages which defendant in error may sustain. Said bond to be approved by the clerk of the supreme court, and this order to be in full force and effect upon approval of said bond.

"Done in chambers this 17th day of December, 1900.

"CLINTON F. IRWIN,

"Associate Justice of the Supreme Court.

"(SEAL.)

"Attest: BENJ. F. HEGLER, Clk. Sup. Ct."

On the same day the clerk of the supreme court approved and filed the bond as directed in said order. Subsequently, upon application of the appellant, Charles Loran Moore, the bond was fixed in this court in the sum of fifteen hundred dollars, which was duly executed by the appellants, petitioners in this proceeding, and was approved and filed by the clerk of this court.

On December 26, 1900, an information was duly filed in the district court by Charles Loran Moore, plaintiff in the mandamus proceedings, praying that a citation issue against the defendants, petitioners here, to show cause why they should not be punished for contempt, on the ground that the said defendants had failed, neglected and refused to comply with a peremptory writ of mandamus issued in said cause. On the same day the district court issued a citation ordering each of said defendants to appear before the said district court and show cause why they failed to obey the peremptory writ of mandamus heretofore issued. On December 28, 1900, the defendants in said action, petitioners here, appeared before the district court in obedience to the citation and filed the following answer, (omitting title):

"Comes now C. G. Epley, R. I. Boyington, J.H. Riggs and Frank T. Hatter, and show to the court that the order of the court which is attached and made a part of the citation herein against them to show cause why they should not be adjudged guilty of contempt, in not performing the acts commanded in said order, was served on them, but that prior to the date that they were ordered to perform the acts mentioned in said order a petition in error was filed by them, as plaintiffs in error in the supreme court of the Territory of Oklahoma, for the purpose of having said proceedings and judgment wherein said order was made, reviewed in the said supreme court, and that prior to the date at which they were commanded to perform the acts in said order, the judgment and order was stayed by Clifton F. Irwin, associate justice of the supreme court, a certified copy of which order is filed in the office of the district court, in said action, reference being had thereto, which certified copy, together with the certificate of the clerk of the supreme court in relation thereto, is made a part of this answer; that the only reason for failing to perform the commands of this court entered in said action and included in said order was on account of the fact that the same was stayed by the associate justice of the supreme court of Oklahoma Territory. And the further reason that they were prosecuting said action in good faith desiring to have said judgment and order reviewed by the supreme court of this Territory, and was not on account of any disrespect for this court or its orders, and was not with any intentions on their part to disregard any orders made by this court.

"Wherefore they ask to be discharged.

"C. G. EPLEY,

"R. I. BOYINGTON,

"J. H. RIGGS,

"FRANK T. HATTER."

Said answer was duly verified. On the same day to-wit, December 28, 1900, the plaintiff, Charles Loran Moore, filed a demurrer to the answer of the defendants, on the following grounds: First--Because the facts stated there in do not constitute any defense; and, second--Because the order for stay of execution on which said defendants rely was granted without power or authority, and is null and void. On the same day the defendants and each of them, filed their written demand for a change of judge, which was refused by the court, to which the defendants at the time excepted. The court on the same day sustained the demurrer...