Palmer v. Harris
| Citation | 101 P. 852,23 Okla. 500,1909 OK 73 |
| Parties | PALMER v. HARRIS. |
| Decision Date | 26 April 1909 |
| Court | Oklahoma Supreme Court |
Syllabus by the 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, following In re Epley et al., 10 Okl. 631, 64 P. 18.
[Ed Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2247-2249; Dec. Dig. § 477. [*]]
The trial court has jurisdiction, in the exercise of its discretion, to allow a supersedeas or stay of a judgment in an election contest, decreeing the contestant entitled to the office, and ousting the contestee from said office, and a writ of certiorari will not lie to review such order.
Petition of T. R. Palmer for writ of certiorari to W. R. Harris. Writ denied.
This is an original action for a writ of certiorari to the district court of Muskogee county, and grows out of an election contest filed in that court by plaintiff against defendant. Plaintiff alleges in his petition that, on the 18th day of July, 1908, he obtained judgment in said contest proceeding whereby defendant was ousted from the office of commissioner for the First commissioner's district of Muskogee county, and plaintiff was declared to be entitled to said office, and to exercise the functions thereof, and was awarded judgment for his costs in the proceeding. He also alleges that the trial court, after awarding him said judgment, upon overruling defendant's motion for a new trial, and, upon defendant's praying an appeal to this court, allowed such appeal, and gave him 40 days in which to make and serve a case-made, and allowed plaintiff 15 days within which to suggest amendments thereto, and 15 days thereafter in which to settle, sign, and file the case-made, and that the court further ordered that a supersedeas bond in the sum of $2,000, to be approved by the clerk of the said court, be given within 5 days, and that the judgment be stayed for such time, and that upon giving and approval of said bond within said period of time, the ouster be stayed pending the decision of this court. Defendant filed with the clerk of the district court of Muskogee county, within the time fixed by the court, his supersedeas bond, which was approved. Plaintiff alleges that by reason of the action of the court allowing the supersedeas, he has been denied the right and privilege of entering into and performing the duties of his office, and is deprived of the emoluments inuring therefrom. He prays for a writ of certiorari to remove said judgment and orders of the court to this court, and for a judgment of this court decreeing the order allowing the supersedeas to be void. Plaintiff attached to his petition certified copies of the final judgment of the trial court, and the order allowing supersedeas, and of the supersedeas bond filed therein, and approval thereof by that court. It is agreed by defendant that the certified copies of the record attached to plaintiff's petition are correct, and that, if we decide that the writ should issue, such record may be taken as a return to the writ, and the question plaintiff desires to have decided by this court upon the return of the writ may be decided without the issuance of the writ.
Where the statute makes no provision for a supersedeas or stay of judgment or final order as a matter of right, the court, in the exercise of its discretion, may allow a stay on such terms as it may prescribe pending an appeal.
The trial court can in its discretion allow a supersedeas or stay of judgment, in an election contest decreeing the contestant entitled to the office, and ousting contestee from said office.
Charles A. Cook and A. A. Davidson, for plaintiff.
Baker & Pursel and J. E. Wyand, for defendant.
The first question to be determined by this court is whether, upon the allegations of plaintiff's petition, the writ should issue. Writs of certiorari were abolished by section 4756, Wilson's Rev. & Ann. St. 1903, and did not exist as a part of the jurisprudence of the territory of Oklahoma before the admission of the state; but this court is authorized, by section 2, art. 7, of the Constitution, to issue writs of certiorari. In Baker v. Newton et al., 98 P. 931 (), it was held that the power of the court under said section to issue writs of certiorari was to issue the common-law writ, and that such writ lies from this court to inferior courts, to bring to it the record in a case for investigation and review as to jurisdictional errors only. If the trial court in the case at bar was authorized to stay the judgment, and has not exceeded its jurisdictional power, the writ should not issue.
Section 4744, Wilson's Rev. & Ann. St. 1903, provides that, in a proceeding to vacate or modify any final judgment or order rendered by the probate court or district court in the four classes of cases specified therein, the judgment or final order may be superseded upon the taking by the clerk of such court of a written undertaking executed by the plaintiff in error. The four classes of cases mentioned in said section are as follows: ***" The judgment in the case at bar belongs to none of these four classes, and it is contended by plaintiff that for that reason the trial court was without power to make the order permitting defendant to supersede the judgment.
This section of the statutes and other sections hereinafter mentioned were before the court for construction in Re Epley et al., 10 Okl. 631, 64 P. 18,
and defendant relies upon the rule announced in that case. The petitioners in that case, Epley, Boyington, and Riggs, composed the board of county commissioners of Garfield county, and Hatter was the clerk of said county and ex-officio clerk of the board of canvassers of the election returns of said county. They had been directed, by mandamus issued by the district court of Garfield county, to reconvene and correctly canvass the votes as shown by the official returns of the election judges in two precincts in said county, cast at the election in 1900. From the order of the court granting the peremptory writ petitioners appealed to the Supreme Court of the territory, and obtained from one of the justices of that court an order staying the judgment of the trial court. But the trial court, upon refusal of the petitioners to obey the peremptory writ, proceeded to cite, hold, and imprison them for contempt of court. Thereupon petitioners prayed the Supreme Court for a writ of habeas corpus. The respondents attacked the validity of the order of the associate justice of the Supreme Court, staying the order of the trial court in the mandamus proceedings, and that was the only question directly involved in the habeas corpus proceedings. The court held that section 4750, Wilson's Rev. & Ann. St., which is as follows: "Execution of the judgment or final order of any judicial tribunal, other than those enumerated in this article, may be stayed on such terms as may be prescribed by the court or a judge thereof, in which the proceedings in error are pending"-authorized the staying of the order in the mandamus proceeding. Mr. Justice Hainer, who delivered the opinion of the court, quoted at length the various provisions in our Code authorizing the Supreme Court to review, on proceedings in error, judgments and final orders of the inferior courts of the territory, and authorizing such inferior courts and the appellate court to stay such judgment or order while being reviewed by the appellate court. Speaking of the powers conferred upon the trial court by section 4744, Wilson's Rev. & Ann. St., Mr. Justice Hainer said: "It will thus be seen that section 569 enumerates the four classes of judgments or final orders which may be stayed or superseded as a matter of right, upon terms prescribed therein, when an appeal is taken to this court from the district court or the probate court." In commenting upon the provisions of said section the justice, following a line of cases from Nebraska, held that, in all cases where the statute makes no provision for a supersedeas as a matter of right, the trial court may in its discretion allow supersedeas upon conditions which it may fix for the protection of the parties. The effect of the entire opinion is that, in all cases named in the four classes provided in said section 4744, the right to stay or supersede the judgment is one of right which the trial court cannot refuse; that in all other cases such right is in the discretion of the trial court, or may be granted by the Supreme Court, or any justice thereof, under the provisions of section 4750.
It is urged by plaintiff that that portion of the opinion which holds that, in all other cases than the four classes enumerated, the right to stay or supersede a judgment is in the discretion of the trial court is obiter dicta, and not binding upon this court, and is contrary to the weight of authorities. We think the criticism to the effect that it is obiter dicta is well founded. The power of the trial court to grant supersedeas in such cases was not involved in that case, but only the...
To continue reading
Request your trial