Ward v. Schwab

1924 OK 1117, 232 P. 849, 106 Okla. 29, 1924 Okla. LEXIS 553

• Court: Supreme Court of Oklahoma
• Decided: December 9, 1924
• Docket: 15390
• Status: Published

Opinion

Opinion by

LOGSDON, C.

There is no merit in this proceeding in error. Upon the trial of the case plaintiff introduced in evidence the bond sued upon, and proved that it had 'been continuously in the possession of the court cleric of Tulsa county as one of the files of his office sinee the date of its execution and delivery. Thereupon the trial court toot judicial notice of the records and files in the cause, and found therefrom that no appeal had ever been prosecuted from the judgment of June 7, 1922, and that the same had become final and remains unsatisfied. Plaintiff thereupon rested his case and defendants demurred to the evidence. This demurrer was by the court overruled, and defendants elected to stand thereon and prosecute this proceeding to reverse the judgment of the trial court. This case is controlled by the rule in the case of Starr et al. v. McClain et al., 50 Okla. 738, 150 Pac. 666. where the law is announced in the syllabus,’ thus:

“After the time has expired for appeal, and the judgment has become final, and not paid, or otherwise stayed," an action will lie on a statutory supersedeas bond, conditioned for the payment of ‘the condemnation money and costs, in case the judgment or final order shall be affirmed in whole or in part,’ even though the appeal has not been perfected, or fails for want of prosecution.”

This case has been followed in the case of Peck et al. v. Curlee Clothing Co., 63 Okla. 61, 162 Pac. 735; Ewing et al. v. Bd. Co. Com’rs. of Ellis Co., 53 Okla. 250, 156 Pac. 229; Crofut-Knapp Co. v. Weber et al., 67 Okla. 163, 167 Pac. 464.

Upon the authority of these cases, and the provisions of Comp. Stat. 1921, section 797, the judgment of the trial court herein should be in all things affirmed.

By the Court: It is so ordered.