Cunningham v. Reynolds

PULLEN, P. J.

Petitioner herein was the owner of certain sheep which strayed upon the lands of respondent. Acting under the Estray Law, respondent thereupon seized the sheep upon his lands and has held the same pending the payment of such damages, expenses and costs as may have been incurred. A few days after the sheep were taken up, petitioner tendered to respondent the sum of $35 as payment for the damages, expenses and costs incurred, but respondent declined to accept that sum and refused to deliver up the sheep to petitioner, and proceeded to record and publish notice as required by law for the sale thereof under the Estray Law. Thereupon, petitioner as plaintiff filed an action against respondent in claim and delivery. Respondent answered, and upon the trial of the issues raised, judgment was entered in favor of respondent for the sum of $1,026.05, being the amount found by the court as damages, costs and expenses incurred by respondent, and further directing if the sum were not paid within ten days after the entry of judgment, the sheriff proceed to sell said sheep at public auction as provided by law.

Plaintiff, upon the entry of judgment, gave notice of appeal and in time the transcript was settled and allowed. Thereafter, upon motion, the trial judge entered an order authorizing and directing the clerk of the court to issue a writ of enforcement of the judgment requiring the sale of the sheep referred to in the judgment.

Thereupon, upon petition to this court for an order to show cause why a writ of

supersedeas

should not issue, and pending a hearing thereon, an order was made by this court staying further proceedings.

It is contended by respondent, and so held by the trial court, that no bond having been posted by appellant, the execution on the judgment is not stayed. On the other hand, petitioner maintains that the proceedings are stayed by the appeal without the filing of any bond. Whether a stay bond is required is the question here for determination.

[150]

The judgment under consideration directs that if plaintiff shall pay to defendant or deposit in court the required amount, the sheep shall be returned to plaintiff. It is further ordered, however, that in case plaintiff fails to pay to defendant or deposit in court the specified amount, said sheep shall be sold.