Daly v. Wolfard Bros., Inc. ( 1955 )

PER CURIAM.

On Angnst 6,1953, during a recess of the court, Mr. Justice Lusk, on application of appellant made in chambers, granted a temporary restraining order staying execution on a judgment o.f the Circuit Court for Clackamas County in the sum of $3779.00 plus $31.48 costs in favor of respondent and against appellant.

Prom a showing in writing it appeared that appellant, in appealing from the judgment, had inadvertently given an undertaking for costs only. Thereafter respondent caused appellant’s bank account to be levied upon and was threatening to proceed with the execution of said judgment. Respondent, according to the showing, was insolvent and “any Mandate issued by this Court in favor of Appellant would be rendered nugatory because in all probability the funds taken in execution * * * would be entirely dissipated either by respondent or by his creditors.” An instrument purporting to be a supersedeas bond, executed by appellant as principal and Maryland Casualty Company as surety, was tendered with the application.

Respondent has moved to vacate the temporary restraining order on two grounds: First, that the court was without power to issue it in the circumstances, and, second, that the bond tendered does not comply with the statute.

The second ground of the motion is good. Section 10-804, OCLA, provides in part:

‘ ‘ The undertaldng of the appellant shall be given with one or more sureties, to the effect that the appellant will pay all damages, costs, and disbursements which may be awarded against him on the appeal; but such undertaldng does not stay the proceedings, unless the undertaking further provides to the effect following:

“ (1) If the judgment or decree appealed from be for the recovery of money, or of personal property, or the value thereof, that if the same or any part thereof be affirmed, the appellant will satisfy it so far as affirmed”.

The undertaking tendered limits the obligation of the principal and its surety to $4000.00. Such an undertaking does not comply with the statute, which does not authorize a pecuniary limitation in any amount in an undertaking to stay the proceedings if the judgment appealed from is for the recovery of money. The instrument is therefore invalid and ineffectual to accomplish its intended purpose. Sutton v. Sutton, 78 Or 9, 11, 150 P 1025, 152 P 271; Sanborn v. Fitzpatrick, 51 Or 457, 459, 91 P 540.

Arthur F. Frag, of Portland, for the motion. Glenn B. Jack, of Oregon City, contra.

The motion is allowed.

PER CURIAM.

On August 6, 1953, on application of the appellant this court granted a temporary restraining order staying the execution of a money judgment had by the respondent against the appellant in the circuit court of Clackamas county. The respondent moved for a vacation of this order upon the grounds that, first, this court was without power to issue the order under the circumstances, and, second, that the bond as tendered did not comply with the requirements of the statute. The supersedeas bond being insufficient, the order of the court was vacated.

Subsequent to the court’s dissolution of the temporary restraining order because of the lack of efficacy of the bond, the appellant again renewed its application for such an order and tendered therewith a good and sufficient undertaking in compliance with § 10-804, OCLA, and on October 8, 1953, the Chief Justice of this court granted the requested restraining order staying the execution of the respondent’s judgment.

The respondent now moves to vacate this temporary restraining order on the ground that the court was without power to issue it because prior to the issuance of the restraining order a writ of execution had issued out of the circuit court of Clackamas county and a levy had been made upon the appellant’s bank account.

At common law a supersedas bond in order to effect the stay of the proceedings on execution necessarily had to come before a levy was made under the execution. 4 CJS 1152, Appeal and Error, § 667; 3 Am Jur 199, Appeal and Error, § 544. This on the theory that the levy under the execution and the sale was entire and indivisible and that the execution was regarded as fully executed from the time of the levy. Generally, this common law-rule has been abrogated under appeal statutes such as § 10-804, supra. Where a good and sufficient bond is provided for the full protection of the respondent “* * * the general rule now is that a supersedeas becomes effective notwithstanding a levy, and stays further proceedings thereunder, * * *” 4 CJS 1152, Appeal and Error, § 667. See also 3 C J1323, Appeal and Error, § 1450, note 78.

In any event, the appellant has filed an affidavit, which is uncontroverted, to the effect that the respondent is insolvent, that the moneys obtained upon the execution would immediately be “entirely dissipated either by respondent or his creditors”, and should the cause be reversed the appellant’s appeal would even then be fruitless as the parties could not again be placed in status quo.

This court has said “The grant of appellate jurisdiction, whether made by the constitution or by statute, necessarily vests in such court all powers of an incidental nature required to make the granted jurisdiction effective”. Livesley v. Krebs Hop Company, 57 Or 352, 97 P 718, 107 P 460, 112 P 1. ■ And it appears in this matter, as in the case just cited, “* * * the threatened enforcement by execution of the judgment, which is the subject of this suit, would operate to satisfy the judgment, and thus nullify any decree this court might render relating thereto, or at least render such a decree difficult of enforcement. * * * ” (Livesley v. Krebs Hop Company, supra).

The respondent can suffer no loss as the undertaking now in force requires full satisfaction to the respondent of his money judgment insofar as affirmed.

The motion to vacate the restraining order is denied.