Ward v. Schwab

232 P. 849 | Okla. | 1924

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 clerk of Tulsa county as one of the files of his office since the date of its execution and delivery. Thereupon the trial court took 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 P. 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 Peek et al. v. Curlee Clothing Co., 63 Okla. 61, 162 P. 735; Ewing et al. v. Bd. Co. Com'rs. of Ellis Co., 53 Okla. 250, 156 P. 229; Crofut-Knapp Co. v. Weber et al., 67 Okla. 163, 167 P. 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.

Note. — See 4 C. J. § 3359 (1926 Anno); 23 C. J. § 1917.