Kreglo v. Fulk

3 W. Va. 74

• Court: West Virginia Supreme Court
• Decided: July 15, 1868
• Status: Published

Opinions

Maxwell, J.

On the motion for a writ of restitution, Judge Maxwell said:

The defendants here recovered a judgment in the circuit court of Jefferson county, on the 26th day of April, 1867, against the plaintiffs here, for the possession of certain real estate, but the parties against whom the judgment was recovered', desiring to present a petition to this court for a supersedeas to the said judgment, obtained from the said circuit court an order suspending the execution of such judgment for thirty days. After the expiration of the thirty days, and before a supersedeas was allowed to the judgment, an execution was sued out and possession of the property delivered to the plaintiffs below. The cause is not now ready for final hearing, but the plaintiffs here, after having, first given the defendants here notice, move this court for a writ of restitution to be restored to the possession of the property. The supersedeas stays the proceedings in the state they were when it was allowed, until the-case is decided. If the judgment of the court below is reversed it will be proper to award a writ of restitution to restore the parties to the possession of the property of which they have been dispossessed by the execution; hut this court has no power to award the writ until the case is decided.

The motion must, therefore, be overruled.