Bestel v. Bestel , 153 Or. 100 ( 1936 )

IN BANC. Suit for divorce by Malka Bestel against Fred Bestel. From an order awarding the custody of the minor child of the parties, plaintiff appeals. On plaintiff's application for a stay of proceedings pending appeal.

APPLICATION DENIED.

REVERSED. REHEARING DENIED. A decree of divorce was entered herein and the custody of the minor child of the parties was then awarded to plaintiff. Subsequent orders concerning the custody of said child were made. On March 26, 1935, an order was made awarding the custody thereof to the defendant for a period of six months dating from the 1st day of March, 1935, and then to the plaintiff for six months beginning with the 1st day of September, 1935, and providing that his custody shall thereafter alternate between the two parents for periods of six months each until the child shall have arrived at the age of six years at which time a further order will be made by the court.

Plaintiff appeals from said order of March 26, 1935, has filed an undertaking upon appeal; and now presents an application for stay of proceedings pending appeal.

Assuming this to be a case governed by the final sentence of section 7-505, Oregon Code 1930, which provides that

"In cases not provided for in such subdivisions [subdivisions 1, 2, 3 and 4, section 7-504, ibid] when an appeal is perfected, with an undertaking for the appeal only, proceedings shall be stayed as if the further undertaking thereof had been given", the filing of plaintiff's undertaking on appeal operated to stay proceedings pending appeal: In reVinton, 65 Or. 422 (132 P. 1165).

While the authorities in sister jurisdictions are in conflict as to the necessity of a special order by the court staying proceedings, after the filing of the required undertaking (3 C.J. Appeal and Error, section 1407, p. 1286), this court, in the case above cited, deemed such an order to be unnecessary, and we are not inclined to change the rule there announced.

Plaintiff's application is denied.