29 Ohio St. 620 | Ohio | 1876
We think the common pleas was right in holding these defenses insufficient, and that the district court erred in reversing the judgment.
Prior to 1810 the statutory condition of a supersedeas bond was, that the plaintiff in error would “ prosecute his writ of error to effect, and abide the judgment of the court thereon.” Ever since 1810 the statutory condition required in cases of money judgments has been, as it still is, to the effect “ that the plaintiff in error will pay the condemnation money and costs, in case the judgment or final order shall be affirmed in whole or in part.”
As early as 1828, in the case of Gardner v. Woodyear, 1 Ohio, 170, and afterward in the case of Reynolds v. Rogers, 5 Ib. 170, it was held that these two statutory conditions of the bond are, in legal effect, the same. This holding, so far as we know, has never been overruled, and we are bound to presume that the legislature, in adopting the present form of condition to a supersedeas bond, did so with full knowledge of these decisions. The object of the bond is to stay execution. This object is effected by filing a petition in error and executing the bond. When this has been done, execution can not, without the execution of a restitution bond, be taken out until the petition in error has been disposed of, no matter whether all the proper parties are before the reviewing court or not. It is enough, for the purpose of staying execution, that the petition in error is prosecuted by a party against whom the judgment was rendered, and that the party entitled to execution is made defendant. If all the necessary parties to the proceeding in error have not joined or been brought before the court, it is competent for the court, at the in
The difficulty in the case is in the fact that a judgment is an indivisible unit. But for this the judgment of affirmance would be an absolute and unqualified bar to Joseph B.
Motion granted; judgment of district court reversed, and that of common pleas affirmed.