Union Sawmill Co. v. Felsenthal Land & Townsite Co

• Decision Date: 09 December 1907
• Citation: 106 S.W. 676,84 Ark. 494
• Parties: UNION SAWMILL Co. v. FELSENTHAL LAND & TOWNSITE CO
• Court: Arkansas Supreme Court

106 S.W. 676

84 Ark. 494

UNION SAWMILL Co. v. FELSENTHAL LAND & TOWNSITE CO

Supreme Court of Arkansas

December 9, 1907

Appeal from Union Chancery Court; E. O. Mahoney, Chancellor.

Reversed and dismissed.

Smead & Powell, and Campbell & Stevenson, for petitioner.

The supersedeas issued by the clerk should be quashed. A decree for a perpetual injunction can not be superseded. Kirby's Digest, § § 1216, 1222, 1218; 73 Ark. 67, 70; 77 Id. 580; 2 Cyc. 913-14; 10 Wall. 273; 109 U.S. 150.

Bunn & Patterson, for respondents.

OPINION

PER CURIAM.

The material part of the judgment in this case is as follows "That the Union Sawmill Company is a corporation engaged in the manufacture of lumber, and for more than one year prior to the institution of this suit it had unlawfully and without right operated its log train across the said land in controversy, the property of the plaintiff, for the purpose of conveying logs to their saw mill; that said trespass has continued for some length of time, and will continue unless prevented by order of this court; and that the Union Sawmill Company should be perpetually restrained from passing over or interfering with said land in anyway. . . . That the defendant, the Union Sawmill Company, its agents, employees and servants, are perpetually enjoined from further entering upon said land for any purpose whatever, except that within ninety days the said defendants, the Union Sawmill Company, can use said lands for the purpose of taking and removing its steel therefrom."

The Sawmill Company appealed to this court and filed a supersedeas bond in the statutory form, and the clerk issued a supersedeas in usual form.

Appellee now files a motion to quash the supersedeas, in so far as it stays so much of the judgment as enjoins the Sawmill Company from operating the log road as above set forth.

It is well settled that the execution of a supersedeas bond does not stay so much of a decree as grants or dissolves an injunction. 2 Cyc. 913-14 and notes; Payne v McCabe, 37 Ark. 318, From its very nature an injunction is not such a judgment as can be stayed by a supersedeas bond. It has been the practice of this court to issue injunctions pendente lite or writs of supersedeas pending litigation, where the justice of the case required the status quo to be preserved.

The appellee's rights are fully protected by the supersedeas bond which has been filed; and the status quo...