101 P. 852 | Okla. | 1909
The first question to be determined by this court is whether, upon the allegations of plaintiff's petition, the writ should issue. Writs of certiorari were abolished by section 4756, Wilson's Rev. Ann. St. 1903, and did not exist as a part of the jurisprudence of the territory of Oklahoma before the admission of the state; but this court is authorized, by section 2, art. 7, of the Constitution, to issue writs of certiorari. In Baker v. Newton et al.,
Section 4744, Wilson's Rev. Ann. St. 1903, provides that, in a proceeding to vacate or modify any final judgment or order rendered by the probate court or district court in the four classes of cases specified therein, the judgment or final order may be superseded upon the taking by the clerk of such court of a written undertaking executed by the plaintiff in error. The four classes of cases mentioned in said section are as follows:
"First. When the judgment or final order sought to be reversed directs the payment of money. * * * Second. When it directs the execution of a conveyance or other instrument. Third. When it directs the sale or delivery of some real property. * * * Fourth. When it directs the assignment or delivery of documents. * * *"
The judgment in the case at bar belongs to none of these four classes, and it is contended by plaintiff that for that reason the trial court was without power to make the order permitting defendant to supersede the judgment. *503
This section of the statutes and other sections hereinafter mentioned were before the court for construction in Re Epley etal.,
"It will thus be seen that section 569 enumerates the four classes of judgments or final orders which may be stayed or superseded as a matter of right, upon terms prescribed therein, when an appeal is taken to this court from the district court or the probate court."
In commenting upon the provisions of said section the justice, following a line of cases from Nebraska, held that, in all cases where the statute makes no provision for a supersedeas as a matter of right, the trial court may in its discretion allow supersedeas upon conditions which it may fix for the protection of the parties. The effect of the entire opinion is that, in all cases named in the four classes provided in said section 4744, the right to stay or supersede the judgment is one of right which the trial court cannot refuse; that in all other cases such right is in the discretion of the trial court, or may be granted by the Supreme Court, or any justice thereof, under the provisions of section 4750.
It is urged by plaintiff that that portion of the opinion which holds that, in all other cases than the four classes enumerated, the right to stay or supersede a judgment is in the discretion of the trial court is obiter dicta, and not binding upon this court, and is contrary to the weight of authorities. We think the criticism to the effect that it is obiter dicta is well founded. The power of the trial court to grant supersedeas in such cases was not involved in that case, but only the power of the Supreme Court, or a justice thereof, but it is clear that the justice delivering the opinion did not inadvertently pass upon the power of the trial court in such cases, for in the syllabus of the case, which was by the entire court, is the following paragraph:
"In cases where the statute makes no provision for a supersedeas or a stay of the judgment or final order as a matter of right, the trial court may, in the exercise of its discretion, allow a supersedeas or stay on such terms as it may prescribe for the protection of the parties pending an appeal to the appellate court." *505
The rule of the court in this paragraph of the syllabus is well supported by a long line of Nebraska cases construing a similar statute, among which are the following: Gandy v. State,
We are of the opinion that it was the intention and desire of the court in Re Epley to determine and fix the practice governing, staying, and superseding judgments and final orders appealed from that led them to decide the question of the power of the trial court to supersede judgments not mentioned in the statute, which question is involved in this case, but was not directly involved in that case. The rule in that case was accepted and followed by the trial courts and appellate court of the territory of Oklahoma subsequent to its announcement, prior to the admission of the state, and, so far as we are informed, it has been generally followed by the trial courts of the state; and, while its correctness has never been brought to the attention of this court heretofore, it has been silently acquiesced in, and we think that it has become a too well-settled rule of practice in this state to justify this court in making an extensive examination to ascertain whether it is supported by the weight of authorities, since to set it aside at this time would probably cause great inconvenience and confusion in the practice, and it may easily be changed by an enactment of the Legislature, if there is any necessity therefor. Weaver v. Gardner,
The language of the judgment disposing of the issues involved in the trial court is as follows:
"It is therefore ordered, considered, and adjudged by the court that the defendant be ousted from the office of county commissioner of and for the First commissioner's district of Muskogee county, and that plaintiff be, and he is hereby, declared *506 entitled to said office, and to exercise the functions thereof, and that the plaintiff have and recover of and from said defendant all his costs of and about this suit laid out and expended, and that execution may issue, to which ruling and judgment of the court the defendant at the time duly excepted."
The order of the court allowing the judgment to be stayed directs that the supersedeas bond shall be given within 5 days, and that the ouster shall not take effect until the expiration of that time, and that, upon the giving of the bond within said time, the ouster shall be stayed pending the decision of this court, and that defendant be required to file his petition in error within 75 days from the date of the judgment. The supersedeas bond filed is conditioned that plaintiff in error, defendant in this action, shall abide the decision of the Supreme Court, and vacate said office of commissioner, and pay all costs in case judgment shall be adjudged against him. There can be no doubt that the order of the trial court, staying the judgment to the extent that it stays the execution for costs, is within the rule in Re Epley, but it is urged by plaintiff that said judgment of ouster, to the extent that it declares him to be the duly elected commissioner and ousts defendant, is self-executing, and cannot be stayed. The Supreme Court of the territory, in announcing the doctrine in Re Epley, supra, that in all cases where the statute makes no provision for a supersedeas or stay of judgment, the trial court may, in the exercise of its discretion, allow a supersedeas or stay, followed and adopted the rule of the Supreme Court of Nebraska. The Supreme Court of that state in following this rule has recognized no distinction in the application thereof between judgments that are self-executing and those that are not self-executing. In fact the rule had its origin in that jurisdiction in a case in which the judgment appealed from was a self-executing judgment. The first pronouncement of that court upon that question is in Gandy v. State,
In Carson et al. v. Jansen et al.,
Plaintiff has called our attention to State v. Meeker,
In State v. Mayor the facts before the court were very similar to the facts in State v. Meeker. The supersedeas bond relied upon in that case, which was an election contest, was one that had been given under the provisions of the statute, without an order of the court allowing the same, and the effect of the opinion of the court in that case is that such bond is not authorized by the statute, but it does not decide that the trial court was without power in its discretion to grant such supersedeas. In neither of these cases is the case of State v.Gandy referred to, and we cannot think that the court intended to overrule the rule announced in State v. Gandy, when that question was not before the court in either of those cases, and no reference is made in either case to State v.Gandy. In Sweeney v. Karsky et al.,
We are not unmindful of the fact that it has been held in many jurisdictions that a self-executing judgment cannot be superseded, and that some of the cases in which it has been so held seem to be directly in point upon the question now before the court, and in conflict with the rule of the Nebraska court followed by the Supreme Court of the territory. Some of said cases are as follows: Mayor v. Shaw,
This conclusion against plaintiff's contention as to the jurisdiction of the trial court to make the order complained of is fatal to his right to the writ, and we shall not discuss whether, if such contention had been true, he had another adequate remedy, as neither party has noticed this question in his brief.
The writ is denied.
Kane, C. J., and Williams and Dunn, JJ., concur; Turner, J., dissents.