Yellow River Improvement Co. v. Arnold

This is a rule on the defendant below to show cause why this court should not fix the amount of the undertaking to stay proceedings in the circuit court pending the appeal of the plaintiff herein. The appeal is from an order, which, in substance, directs the sheriff to deliver to the defendant certain lumber and timber that the officer has seized under a warrant issued in favor of the plaintiff company to satisfy a lien claimed under its charter. The circuit court, in effect, decided that the defendant was entitled to the possession of the property seized by the sheriff, upon giving a sufficient bond or undertaking for the delivery of the property to the plaintiff in case a delivery thereof should be ordered, and for the payment of any judgment which the plaintiff may recover in the action. The defendant executed the bond, with sureties. The circuit court, upon such bond being given, refused to stay proceedings pending the appeal taken by the plaintiff from the order; and hence the application is made to this court for a stay.

It is impossible for us to go into an examination of the *516points discussed by counsel on botb sides on this rule, without anticipating questions which, will necessarily arise on the appeal. We can only say that in our judgment the bond given by the defendant under the direction of the court, even if not valid as a statutory undertaking— a question we do not decide now, • — ■ is surely good as a common-law obligation. The plaintiff is secured by it against all loss, and, being amply indemnified, cannot be prejudiced if no stay is granted.

The rule to show cause is therefore discharged.