State ex rel. Kay v. Draney
| Decision Date | 31 December 1918 |
| Docket Number | 3271 |
| Court | Utah Supreme Court |
| Parties | STATE ex rel. KAY et al. v. DRANEY et al |
Appeal from District Court, Second District, Weber County; A. W Agee, Judge.
Ouster proceedings by the State, on the relation of Margaret Kay and others; against William H. Draney and others. Judgment for plaintiffs, and defendants appeal.
REVERSED and REMANDED, with directions to dismiss.
C. R Hollingsworth and H. H. Henderson, both of Ogden, for appellants.
John G Willis, of Ogden, for respondents.
GIDEON, J. FRICK, C. J., and CORFMAN and THURMAN, JJ., concur. McCARTY, J., died after the Submission of this cause and before the filing of the opinion.
The controversy in this action grew out of an effort on the part of the plaintiffs to enforce a judgment in their favor entered by the district court of Weber county in an action therein pending entitled Roberson et al. v. Draney et al., from which an appeal had been taken to this court. A decision in that case has been rendered by this court at the present term. The facts are fully stated in the opinion respecting that litigation, and only such additional facts will be stated here as are necessary to make plain the rulings in this proceeding.
It appears that, in the original suit of Roberson et al. v. Draney et al., a judgment was entered by the district court on January 15, 1918, adjudging that 900 shares of stock in said coal company held, 300 shares each, by Draney, C. H. Gosling, and Ryan, had been wrongfully and illegally issued, and decreeing that said defendants deliver the certificates representing said 900 shares of stock to said coal company for cancellation; that a motion for a new trial had been overruled in that action on the 11th day of February, 1918, that thereafter, on the 13th day of February, 1918 defendants served and filed their notice of appeal from said judgment to this court, and on the same day applied to the court for an order fixing the amount of a supersedeas bond; that the court on said date fixed said bond in the sum of $ 90,000; that on the same day a bond in the amount fixed was filed with the clerk of the district court. It further appears that on the evening of the said 13th day of February a regular stockholders' meeting of the coal company was had, at which time two sets of officers were voted for; that the defendants were present and voted the 900 shares of stock in question in favor of themselves for such offices, and by reason of such 900 shares the defendants received a majority of the votes cast for the respective offices. Excluding said 900 shares, the plaintiffs received a majority of the votes. This proceeding sought to oust the defendants from the respective offices and to induct the plaintiffs into such offices, on the theory that the defendants were not entitled to vote the 900 shares by reason of the judgment of January 15, 1918. The court adopted the view of the plaintiffs and entered its decree ousting the defendants from office and inducting the plaintiffs into said office. From that judgment the matter is brought here on appeal.
It is the contention of appellants that the giving of the supersedeas bond in the amount as fixed by the court in its order of February 13, 1918, held in abeyance or superseded the judgment holding that such stock had been illegally issued and directing its delivery for cancellation, and that the defendants, as the owners of that stock, stood in the same relation to the company as they did prior to the entry of the judgment of January 15, 1918. A determination of that question requires a construction of certain provisions of our statute respecting appeals.
Comp. Laws 1907, section 3308, provides:
"If the judgment or order appealed from direct the assignment or delivery of documents or personal property, the execution of the same cannot be stayed by appeal unless the things required to be assigned or delivered be placed in the custody of such officer or receiver as the court or the judge thereof may appoint, or unless an undertaking be entered into on the part of the appellant, with at least two sureties, and in such amount as the court or the judge thereof may direct, to the effect that the appellant will obey the order of the appellate court upon the appeal."
Section 3313 of the same compilation, so far as material here, reads:
"Whenever an appeal is perfected, as provided in the preceding sections of this chapter, it stays all further proceedings in the court below, upon the judgment or order appealed from, or upon the matter embraced therein, and releases from levy property which has been levied upon under execution issued upon said judgment; but the court below may proceed upon any other matter embraced in the action and not affected by the order appealed from. * * *" Section 3314 is:
"If the judgment appealed from directs or prohibits the doing of any particular act or thing, and no express provision is made by statute in regard to the undertaking to be given on appeal therefrom, the execution thereof shall not be stayed by an appeal therefrom, unless an undertaking be entered into on the part of the appellant in such sum as the court or judge shall direct, and by at least two sureties, to the effect that the appellant will pay all damages which the opposite party may have sustained by the not doing or the doing of the particular act or thing directed to be done or prohibited from being done by the judgment appealed from, and to such further effect as the court or judge shall, in discretion, direct."
If the judgment or order made by the court on January 15, 1918, is such an order or judgment as is included or enumerated in section 3308, the giving of the bond as required by that section would, under the plain provisions of the subsequent section, 3313, stay "all further proceedings in the court below, upon the judgment or order appealed from, or upon the matter embraced therein." If, on the other hand, the judgment or order is such a judgment or order as mentioned in section 3314, then, upon the giving of the bond as provided therein, the judgment is likewise stayed. If the giving of an undertaking is necessary as provided in said section 3314 to stay such judgment or order, then the converse of the proposition must necessarily be true, that the giving of such an undertaking does stay the judgment or order appealed from, otherwise the provision that judgment shall not be stayed unless an appeal bond is given would be meaningless and a unless thing or provision to insert in the...
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