Reichel v. Mooney

PER CURIAM. Application by plaintiff for leave to enter judgment in this cause in the court below upon the verdict rendered therein, on the ground that no sufficient super [537] sedeas bond was given on the appeal to this court Plaintiff had a verdict below for the sum of $5,500. A motion by defendant for a new trial was denied, from which he appealed. A bond on such appeal in the sum of $250 was filed in and approved by the court below, and purports on its face to be both a cost and supersedeas bond. On the claim that it is wholly inadequate in amount, and therefore insufficient to stay proceedings in the action, this application is made for leave to enter judgment upon the verdict. The application is denied. The bond answers the purpose of a supersedeas, and this court is .without authority to declare it insufficient, in view of the fact that the trial court is alone vested with authority to fix the amount of such bonds. In view,.however, of the probability that the bond may have been approved by the trial court through inadvertence, under the impression that it was a mere cost bond, or that the penalty thereof, wholly insufficient in view of the amount of the verdict, escaped its notice, it is ordered that the cause be remanded temporarily to the court below for the purpose of permitting an application by respondent to the judge thereof for an order requiring appellant to file, within ten days after hearing of the same, such additional supersedeas bond as may be deemed adequate and sufficient in amount; the cause to be returned to this court upon the expiration of such time, with a certificate of the proceedings had therein. Let a certified copy of this order be forthwith filed in the office of the cleric of the court below.