Whitcomb v. Beyerlein
| Citation | 276 P. 430,84 Mont. 470 |
| Decision Date | 15 April 1929 |
| Docket Number | 6440. |
| Parties | WHITCOMB v. BEYERLEIN et al. |
| Court | Montana Supreme Court |
Appeal from District Court, Lewis and Clark County; B. B. Law Judge.
Action by John E. Whitcomb against Jane E. Beyerlein and another, in which plaintiff recovered judgment, on which execution was issued. Application by named defendant for an order to show cause why the writ of execution should not be recalled was denied, and named defendant appealed. Affirmed.
F. W Mettler, of Helena, for appellant.
J Miller Smith, Paul W. Smith, and David R. Smith, all of Helena, for respondent.
On December 14, 1927, plaintiff recovered judgment against the defendants for the restitution and possession of certain described land situated in Lewis and Clark county. On December 29, 1927, execution thereon was issued and placed in the hands of the sheriff for service. The return of the sheriff shows that the writ was served on February 11, 1928, "by delivering the possession of the real property described" to plaintiff and by delivering a copy of the writ, together with a copy of the judgment, to Jane E. Beyerlein. On February 15, 1928, the defendants filed notice of appeal to this court from the judgment. On the same day a supersedeas bond signed by individual sureties, conditioned as provided in section 9738, Revised Codes of 1921, was filed. On February 25, notice of exception to the sufficiency of the sureties and to the form of the undertaking was served and filed by plaintiff. On March 5, 1928, the defendant Jane E. Beyerlein filed application for an order to show cause, in which she requested that the writ of execution be recalled and "that she be restored to possession of said lands and premises pending the said appeal." An order to show cause was issued on the 7th day of March, requiring plaintiff and the sheriff of Lewis and Clark county to appear before the court on March 12 and show cause why the writ of execution should not be recalled and the execution of the judgment stayed pending the appeal therefrom to this court. On March 12, hearing on the order to show cause was had, and the court, Hon. B. B. Law presiding, made an order denying the application. This appeal was taken from that order by defendant Jane E. Beyerlein.
The contention of defendant is that at the time she applied to have the execution recalled and stayed, and at the time of the entry of the order denying her application, she had perfected an appeal from the judgment, had furnished a supersedeas bond, and that the writ had not in fact been executed as shown by the sheriff's return. It is contended by defendant that her rights on this appeal must be measured by the conditions existing at the time of the making of the order appealed from. Accepting the latter contention as correct, the question, then, is: Was a valid supersedeas bond filed and in effect when the order complained of was made?
Under section 9738, supra, the execution of a judgment directing the delivery of possession of real property cannot be stayed "unless a written undertaking be executed on the part of the appellant," conditioned as therein provided.
Under section 9825, Id., as well as section 9827, Id., such undertakings must be accompanied with an affidavit by the sureties that they are "householders or freeholders within the state." The affidavit accompanying the undertaking here in question did not contain a statement that the sureties were householders or freeholders within the state. The affidavit accompanying an undertaking must comply substantially with the statutory requirements. 3 C.J. 1147.
In Tibbet v. Sue, 122 Cal. 206, 54 P. 741, the Supreme Court of California, in speaking of the sufficiency of an undertaking on attachment under statutes similar to our sections 9825 and 9827, supra, where the affidavit omitted the statement that the sureties were householders or...
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