Peebler v. Olds

SHENK, J. This is an application for the writ of supersedeas to stay execution on a money judgment against the defendants. On the filing of the petition an order to show cause was issued accompanied by a stay pending the determination of the application. As a return the plaintiffs have filed a general demurrer and an answer.

The facts material to the controversy are not in dispute and reveal the following: On June 28, 1943, the plaintiffs commenced an action for equitable relief and for damages, alleging that the defendant Edith W. Danziger should be enjoined from going on the real property involved in the action except for the purpose of removing a building; that the defendants should be enjoined from using a business name similar to that used by the plaintiffs, and that the defendants should be enjoined from interfering with the plaintiffs in the use of a well in controversy. By amended pleadings damages were sought. Findings of fact and conclusions of law were filed and judgment was entered in accordance therewith, including a judgment for damages. A motion for a new trial was denied and a notice of appeal filed. On May 26, 1944, the appealing defendants filed an undertaking in the sum of $2,050 to stay execution pending appeal. On May 31st the plaintiffs served notice of their exception to the sufficiency of the sureties. Thereafter the defendants gave notice that the sureties would justify before the court commissioner on June 12th. On that day one surety appeared before the commissioner and was examined. The other failed to appear. The commissioner notified counsel for the defendants that the verification of the undertaking was not in proper form and that the wives of the sureties would have to sign the undertaking. A new bond was directed to be presented and the hearing was continued to June 14th, at which time a new bond signed by the sureties and their wives and properly verified was filed. One of the sureties was examined and justified, and the matter was continued to June 16th. The prior examination of the other surety, Mr. Fiekeisen by name, disclosed that title to valuable property claimed to be owned [25]by Mm stood of record in the name of his wife. Plaintiffs’ counsel objected to the completion of the examination on the ground that Mrs. Fickeisen was not present for examination and a date for a further hearing was considered by the commissioner and by counsel for both parties. Plaintiffs’ counsel stated that it could not be Monday the 19th. The commissioner announced that he would hear it on Tuesday the 20th. Defendants’ counsel stated that Mrs. Fickeisen could not attend on Tuesday and suggested Wednesday. Plaintiffs’ counsel stated: “I cannot be here Wednesday. Thursday would be satisfactory.” Whereupon the commissioner set the further hearing for Thursday the 22d and announced: “If that is beyond the 20-day period, you had better take whatever action is necessary,” and further stated that he was continuing the matter to June 22d “at counsel’s request.”