The Farmers State Bank v. Haun

• Decision Date: 27 February 1923
• Docket Number: 1156,1154,1153,1151,1155,1157,1152,1150,1148,1149
• Citation: 213 P. 361,29 Wyo. 322
• Parties: THE FARMERS STATE BANK v. HAUN, ET AL. Same v. State, et al.; Same v. Waltz, et al.; Same v. Adison, et al.; Same v. Lichtenwald, et al.; Same v. Wilk, et al.; Same v. Longern, et al.; Same v. Chisam, et al.; Same v. Gordon, et al.; Same v. Delfelder, et al
• Court: Wyoming Supreme Court

213 P. 361

29 Wyo. 322

THE FARMERS STATE BANK v. HAUN, ET AL.

Same v. State, et al.;

Same v. Waltz, et al.;

Same v. Adison, et al.;

Same v. Lichtenwald, et al.;

Same v. Wilk, et al.;

Same v. Longern, et al.;

Same v. Chisam, et al.;

Same v. Gordon, et al.;

Same v. Delfelder, et al

Nos. 1148, 1149, 1150, 1151, 1152, 1153, 1154, 1155, 1156, 1157

Supreme Court of Wyoming

February 27, 1923

Heard on Two Motions: 1. For an Order Granting Supersedeas in Each Case; 2 To Consolidate and Advance the Several Causes for Hearing.

A. C Allen and O. N. Gibson, for plaintiff and respondent.

W. C Mentzer, H. C. Brome, and Joel F. Longnecker, for defendant and appellant.

No briefs were filed on the motions.

POTTER Chief Justice. BLUME and KIMBALL, JJ., concur.

OPINION

POTTER, Chief Justice.

The above numbered cases, here on appeal, have been heard together upon two motions; one to consolidate the causes for hearing and advance the hearing thereof in this court, and the other for an order by this court staying execution in each case pending the appeal, upon the appellant's giving bond in such reasonable time and reasonable sum as may be fixed by the court conditioned as provided by law, and restraining the enforcement of the judgment appealed from during such reasonable time.

No objection was offered to the motion to consolidate and advance the hearing of the causes, but counsel for appellee announced their readiness to join in a request for an order to that effect. The reasons stated in the motion appearing to be sufficient to justify it, an order will now be entered consolidating the causes for hearing, and when they are matured for hearing by the filing of briefs, an order may then be entered advancing the hearing.

The several causes are here under the statute providing for a direct appeal as distinguished from proceedings in error, for the review of money judgments rendered against the appellant as an alleged guarantor of certain notes; the appellant having been joined as a defendant in each action with the maker or makers of the note or notes upon which the action was brought, the plaintiff in each case being the same--The Farmers State Bank of Riverton. Although the motion to stay execution does not indicate a purpose that the bond to be provided for in such an order shall be limited to a sum less than the amount of the judgment or that might be deemed a proper amount in such a bond standing alone to secure the payment of the judgment, it was suggested upon the argument, for reasons presently to be stated, that the bond to be required by such an order of this court should be merely for a nominal sum. And we understand the purpose of the motion to be to obtain an order of this court staying the enforcement of the judgment in each case upon the giving of a bond for a nominal sum, it having been conceded at the argument that an order had been entered by the District Court before the appeal was perfected providing for a stay of execution in each case upon the giving by the appellant of an undertaking or bond in a sum equal to the amount of the judgment plus $ 100; the last named amount having been included to cover costs. Such order of the District Court does not seem to be included in the record here, but there is in the record a notice for the hearing of an application to be made by the appellant to the District Court for such an order.

The grounds upon which it is contended that the appellant should be permitted to give a bond in a much smaller sum in each case than that fixed by the District Court are substantially as follows: That the principal assets of the appellant, which is a corporation organized under the laws of Utah, consist of farm lands in Fremont County in this state, purchased for cash during the years 1918, 1919 and 1920, upon which improvements have been placed by the appellant costing approximately $ 293,000; that said lands cover a total of 3900 acres of irrigated farms worth $ 175,000; that said lands as held by appellant are subject to existing liens on certain parcels amounting to only $ 28,000; that the total amount claimed in 18 civil cases brought against the defendant as guarantor of certain notes of its tenants on said lands, including the cases now here, is the sum of $ 73,000; that in 16 of said suits the plaintiff caused writs of attachment to be issued and levied upon appellant's said land and property, whereby the plaintiff secured a lien for the alleged obligations in more than twice the amount alleged to be due; that the plaintiff has also, in nearly all of said cases, collateral security of the makers of the notes, as well as the personal liability of such makers, many of whom are solvent; that executions have also been issued upon the judgments and levied upon said lands, in the cases now in this court, greatly interfering with appellant's income from said lands, and, as we were informed, the separate parcels of land levied upon under execution are now advertised for early sale upon such levy. We were also informed, whether it may be material or not, that there was no provision in the judgment in either case for a sale of the property covered by the writ of attachment issued and levied in the case, but that the executions issued in the several cases have been respectively levied upon separate parcels of the land irrespective of the tract or tracts covered by the writ of attachment in the same case.

The motion here is supported by several affidavits showing the value of the lands to approximate the value stated in the motion, upon which it is argued that the plaintiff and appellee is already sufficiently secured by said attachment and execution liens. The motion is contested on the ground, first, that this court is without jurisdiction to grant the stay for the reason that the statute provides the only method, citing Laughlin v. King, 22 Wyo. 8, 133 P. 1073, and second, that the plaintiff is entitled to proceed with the levy and sale under the executions in the several cases, unless bond, as provided by statute, is given in an adequate penal amount to secure the payment of the judgment. The statute thus relied on is found in § 6412, Comp. Stat. 1920, among the provisions of the statute providing for the appellate procedure under which the case is here. It provides that upon a defeated party stating to the District Court after judgment in a civil case that he desires the case reviewed on appeal and a stay of execution and judgment for that purpose, said District Court, or judge thereof, shall stay execution and judgment for such time as may be necessary for the appeal to be perfected and may require such undertaking for the stay as in the discretion of the court or judge may appear reasonable and necessary; the condition of the bond to be that the party intending to appeal "will perfect his appeal within the time allowed by law, and, if perfected, that he will prosecute the appeal in the Supreme Court with diligence, and that he will abide the judgment appealed from, and pay to the opposite party the amount thereof with interest, and the costs of the District Court, and all costs of appeal in the event that he is unsuccessful." The section provides further that if such bond shall be furnished in the first instance, and the appeal be perfected within the time required by the statute, said bond shall continue in force and operate as a stay of execution pending the appeal.

The case of Laughlin v. King, supra, was in this court under the provisions of the statute relating to proceedings in error, which was then and for many years had been the only method of review in this court of a judgment of the District Court until the enactment in 1917 of the statute providing for the so-called "direct appeal," as a separate and independent method of reviewing civil and criminal cases in this court. And the only statutory provisions for staying execution pending such review in this court were those referred to in that case, viz., §§ 5116 and 5124, Comp. Stat. 1910, now respectively §§ 6378 and 6386, Comp. Stat. 1920. The first of the two cited sections declares that no proceeding to reverse, vacate or modify a judgment or final order of the District Court shall operate to stay execution until the party against whom the judgment or order was made shall file in the office of the clerk of the court wherein the same was rendered an undertaking with sureties to be approved by the court, or the judge or the clerk thereof, in a sum to be fixed by the said court or judge, and prescribes the condition of such undertaking in certain cases: 1. When the judgment or order directs the payment of money. 2. When it directs the execution of a conveyance or other instrument. 3. When it directs the sale or delivery of possession of real property. 4. When it directs the assignment or delivery of documents. The other section provides that execution of a judgment or final order of any judicial tribunal, other than those enumerated in the chapter, may be stayed on such terms as may be prescribed by the court in which the petition in error is filed, or by a judge thereof. The prescribed condition of the required undertaking where the judgment or order directs the payment of money is "that the plaintiff in error will pay the condemnation money and costs, if the judgment or final order be affirmed in whole or in part, or if the proceedings in error be dismissed."

Considering only those two sections of the statute, it was said in Laughlin v. King that where the judgment is for money only "neither this court nor a judge thereof is authorized to fix the terms on which execution will be stayed, the statutes having otherwise prescribed the method for so doing." And an order of the Chief Justice for such stay...