Berryman v. Ardery

PER CURIAM.

Petitioners seek to prohibit the respondent as Judge of the Woodford Circuit Court from enforcing an order requiring them to file a supersedeas bond.

Petitioners were defendants in an action tried before respondent in the Woodford Circuit Court. After judgment was entered against them they filed a notice of appeal. Subsequently the other parties to the appeal filed a motion asking respondent to require petitioners to file a supersedeas bond to indemnify them “for costs, interest and any damages resulting from delay” in the event the appeal should be dismissed or the judgment affirmed. Following a hearing the requested order was entered by respondent.

CR 73.04, provides in pertinent part:

“Whenever an appellant entitled thereto desires to stay on appeal, as provided in Rule 62.03, he may present to the circuit clerk or the court for approval an executed supersedeas bond with good and sufficient surety. * * ”

Since petitioners have not sought to stay the execution of the judgment entered against them, they may not be required to post a supersedeas bond.

Inasmuch as petitioners’ refusal to post the supersedeas bond may place them in contempt of court we deem it proper to grant prohibition.

It is therefore ordered that the respondent is prohibited from enforcing his order of November 22, 1965, requiring petitioners to execute a supersedeas bond.