Syllabus
by the Court.
Under
the statutes of this state, an appeal will lie from the
district, superior, or county courts to the Supreme Court
without entering into a supersedeas bond. The only purpose
and effect of such bond is to stay execution, or other
proceedings to enforce the judgment.
After
the time has expired for appeal, and the judgment has become
final, and not paid, or otherwise stayed, an action will lie
on a statutory supersedeas bond, conditioned for the payment
of "the condemnation money and costs, in case the
judgment or final order shall be affirmed in whole, or in
part," even though the appeal has not been perfected, or
fails for want of prosecution.
In an
action on an appeal or supersedeas bond, it is necessary to
allege that the judgment in which said bond is given has not
been paid, and that the time for taking appeal has expired
and, in case said petition does not allege such facts, it
does not state facts sufficient to constitute a cause of
action, and a demurrer thereto on that ground should be
sustained.
Commissioners'
Opinion, Division No. 4. Error from County Court, Rogers
County; H. Tom Kight, Judge.
Action
by A. N. Starr and others against Hattie J. McClain and
another. Judgment for plaintiffs, and defendants bring error.
Reversed and remanded.
ROBBERTS
C.
On the
29th day of December, 1909, the defendants in error recovered
judgment for $90 against W. T. Taylor, before a justice of
the peace in Rogers county. The defendant appealed to the
county court, and in so doing entered into an appeal bond
with A. N. Starr, one of the plaintiffs in error herein, as
sole surety. The case was tried in the county court, and
judgment rendered for plaintiffs. Thereupon, evidently with
the intention to appeal said case to the Supreme Court, the
defendant executed a supersedeas bond, with plaintiffs in
error B. H. Hester and E. M. Eaton as sureties. For some
reason the case was not appealed to this court, and evidently
the judgment in the county court became final. Thereafter the
judgment creditors, who are defendants in error herein,
commenced an action in the county court against A. N. Starr,
surety on the appeal bond, and B. H. Hester and E. M. Eaton,
sureties, on the supersedeas bond, said action being based on
both of said undertakings. The petition in said case is as
follows:
"Come now the above-named plaintiffs, and for cause of
action against the defendants allege and state:
First. That on the 29th day of December, 1909, these
plaintiffs obtained a judgment against one W. T. Taylor in a
suit entitled Hattie J. McClain and Sarah V. McClain, by
Their Next Friend and Natural Guardian, Mrs. W. B
Kittermann, v. W. T. Taylor, Defendant, in civil case No.
279, before E. J. Humphrey, justice of the peace, in the sum
of $90, together with an attorney fee of $10, as is evidenced
by a certified copy of the transcript in such case hereto
attached, marked 'Exhibit A,' and made a part hereof.
Second. That on the 1st day of January, 1910, the defendant
A. N. Starr made and executed an appeal bond in the
above-cited action, which said appeal bond was for the
purpose of carrying the said cause on appeal to the county
court of Rogers county, a copy of which said bond is hereto
attached, marked 'Exhibit B,' and made a part hereof.
Third. That upon the filing of said bond, said case was
appealed to the county court of Rogers county, state of
Oklahoma, and is known on the dockets of said court as case
No. 241 Civil.
Fourth. That on the 30th day of January, 1911, said case was
tried in said county court of Rogers county, state of
Oklahoma, before Hon. H. Tom Kight, judge of said court,
being the trial upon the appeal of said cause, and that upon
that date the parties to said suit having waived a jury,
judgment was rendered by the court in favor of the plaintiffs
in the sum of $96.75 and costs, as is shown by the records of
said court.
Fifth. That on the 31st day of January, 1911, the defendant
William T. Taylor filed a supersedeas bond in the sum of
$96.75, which said bond was signed by B. H. Hester and E. M.
Eaton as sureties, as is evidenced by a copy of said bond,
which is hereto attached, marked 'Exhibit C,' and
made a part hereof.
Sixth. That this bond was given for the purpose therein
stated, which was for the purpose of carrying an appeal of
said case to the Supreme Court of the state of Oklahoma.
Seventh. That the defendant in that action William T. Taylor
failed and refused and neglected to carry said case to the
Supreme Court of the state of Oklahoma, and it was never
appealed under such bond.
Eighth. That the plaintiffs have made demand upon the
defendants A. N. Starr, B. H. Hester, and E. M. Eaton for the
payment of said judgment under said bond, but said defendants
have refused and neglected, and still refuse and neglect to
make payment under said bond.
Wherefore, premises considered, plaintiffs pray that they may
have judgment against the defendants in the sum of $96.75,
with an attorney fee of $10 and all costs in the case herein
laid out and expended, and for such other and further relief
as to the court may seem fit and proper."
"Exhibit
B.
We, W. T. Taylor, as principal, and Arch N. Starr, as
sureties and residents of said Rogers county, hereby
undertake and bind ourselves to the said Hattie J. McClain
and Sarah V. McClain, Mrs. W. B. Kittermann, next friend in
the above-entitled action, in the sum of two hundred fifteen
and 30/100 dollars ($215.30), that being double the amount of
the judgment and costs rendered against said appellant, W. T.
Taylor, in said action, that said appellant will prosecute
his appeal from said judgment to the county court of said
Rogers county to effect and without necessary delay, and if
judgment be rendered against him on the appeal, that he will
satisfy such judgment and costs.
Witness our hands this 1st day of January, 1910.
W. T. Taylor.
A. N. Starr."
"Exhibit
C.
Know all men by these presents: William T. Taylor, principal
obligor, and B. H. Hester and E. M. Eaton, sureties, are held
and firmly bound unto Hattie J. McClain and Sarah V. McClain,
by their next friend and natural guardian, Mrs. W. B.
Kittermann, plaintiffs in the above-entitled cause, in the
sum of three hundred dollars ($300.00), for the payment of
which well and truly to be made, we, and each of us, do
hereby jointly and severally bind ourselves, our successors
and assigns.
Dated this 31st day of January, A. D. 1911.
The condition of the foregoing obligation is such that,
whereas, on the 30th day of January, 1911, judgment was
rendered in favor of said obligee, plaintiff in said cause,
and against William T. Taylor, the principal obligor,
defendant in said cause, for the sum of ninty-six and 75/100
($96.75) and costs; and whereas, said defendant has taken
an appeal from said judgment to the
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