The Central National Bank of Carthage v. The Guthrie Mountain Portland Cement Company
| Decision Date | 23 November 1910 |
| Docket Number | 17,275 |
| Citation | 83 Kan. 630,112 P. 332 |
| Parties | THE CENTRAL NATIONAL BANK OF CARTHAGE, MISSOURI, Appellee, v. THE GUTHRIE MOUNTAIN PORTLAND CEMENT COMPANY, Appellant |
| Court | Kansas Supreme Court |
Decided July, 1910.
Appeal from Bourbon district court.
C. E Hulett, McReynolds & Halliburton, and Hubert Lardner, for the appellee.
John E Hessin, and Charles H. Winston, for the appellant.
On January 25, 1910, in an action upon a promissory note, the Central National Bank of Carthage, Missouri, obtained a judgment against the Guthrie Mountain Portland Cement Company, which included an order for the sale of attached property. On August 3 an execution was issued, under which other property was seized and advertised to be sold at ten o'clock on the morning of August 25. At that time a sale was made to W. C. Gunn, the validity of which is denied by the defendant on the ground that before it took place an appeal had been taken and a stay bond given. The appeal was perfected August 24, and a statutory stay bond was filed and approved by the clerk of the district court on August 25, but whether before or after ten o'clock is disputed.
On August 26 a justice of this court, on application of the defendant, granted an order staying all proceedings in the district court pending the determination of the appeal. On September 19 the plaintiff filed in the district court a motion to confirm the sale, and the next day an order was made sustaining the motion and directing the disbursement of the proceeds. On September 30 a citation was issued from this court against the defendant and others to show cause why they should not be deemed to be in contempt for having proceeded with the litigation in the district court after the stay had been granted. Upon a hearing it developed that the proceedings had been taken in good faith, in the belief that they did not contravene the stay order. The court, however held that belief to be erroneous and the participants were adjudged to have been guilty of a technical contempt, from which they were purged upon their causing everything to be undone that had taken place after the granting of the stay order, thus restoring matters to the condition that existed on August 26.
The case now comes up for hearing on a motion of the plaintiff to set aside the stay order granted August 26, upon the ground that it was contrary to the statutes and without authority of law. As the only question raised concerns the power to make such an order under the circumstances, the motion must be denied. The statute provides that during the pendency of the appeal the supreme court "may make an order suspending further proceedings in the court below." (Gen. Stat 1868, ch. 27, § 1, Gen. Stat. 1909, § 2362.) And it is a necessary incident to the exercise of appellate jurisdiction that the reviewing court shall be able by appropriate action to preserve an existing status, so that when an appeal is decided the fruits of the decision shall not be lost because in the...
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