Nonpareil Manufacturing Co. v. McCartney

McFARLAND, J.

Petition by appellants for a

supersedeas.

On October 6, 1903, this court made an order fixing December 10, 1903, as the date of hearing of this petition, and also staying all proceedings on the judgment appealed from

[2]

“until the further order of this court.” The petition was afterwards heard and submitted.

On September 30, 1903, the plaintiff in the case obtained a money judgment against defendants therein (petitioners here) for about fifteen hundred dollars. In due time defendants appealed from the judgment and gave an undertaking to stay proceedings executed by E. D. Bennett and Tillie Beede. Plaintiff served defendants with a notice of objection to the sufficiency of the sureties, and in response thereto defendants served notice upon plaintiff that the sureties would justify before the county clerk on the twenty-ninth day of October, 1903, at two o’clock p. m. of that day. On said twenty-ninth day of October, at said two o’clock p. m., the attorneys for both parties appeared before the county clerk,—a deputy clerk acting for the county clerk, who was absent. The attorney for defendants had with him Bennett, one of the sureties, and one Beinhardt, whom he desired to substitute as surety in place of said Tillie Beede, whose presence could not at that time be procured. Defendants’ attorney asked that Beinhardt be allowed to sign the original undertaking, and that then Bennett and Beinhardt be allowed to justify. The attorneys for plaintiff and the deputy clerk both objected to this, and asserted that a new undertaking should be executed. Defendants’ attorney objected to giving a new undertaking, and contended that it was proper and sufficient for the new surety to sign the old undertaking; but the deputy clerk refused to allow that to be done, and declined to hear any justification unless a new undertaking were filed. As to what thereafter occurred there is some conflict of evidence. Plaintiff contends that nothing further was done or said than as above stated, and that then all the parties left the clerk’s office and went away. Defendants contend that before the parties left defendants’ attorney announced that if a new undertaking was insisted on he would give one. And afterwards, at 4:30 p. m., the attorney for defendants returned to the clerk’s office with Bennett and Beinhardt, who in the presence of said deputy clerk executed a new undertaking, and asked that they be allowed then to justify. The deputy clerk refused to hear the justification in. the absence of the attorneys for plaintiff, whom he tried to reach by telephone, but could not do so.