This is an original action in this court for a writ of mandate asking that the respondent, Judge of the Whitley Circuit Court, be mandated to enter an order staying all further proceedings on a certain judgment of said court, wherein an adequate appeal bond has been filed with approved sureties.
The pertinent facts in this case, as disclosed by the relators' complaint and the respondent's response to a rule to show cause, disclose that on March 6, 1948, one Louise Larwill, in an action to recover possession of certain real estate, which was cause No. 14102, Whitley Circuit Court, recovered judgment for possession against the relators. In this judgment it was ordered that the defendants, who are the relators herein, yield possession of the premises to the said Louise Larwill *Page 354 within 60 days and that in case they failed to do so a writ of restitution should issue to dispossess them. On April 5, 1948, relators filed their motion for a new trial in this cause which was overruled on April 14, 1948. At this time the relators exhibited a form of appeal bond to the trial court and the court fixed the amount at $2,000. On May 7, 1948, being more than 60 days after judgment was rendered, the said Louise Larwill filed a petition in said court setting forth that no appeal bond had yet been filed by the relators herein, and prayed that a writ of restitution be issued, which petition was granted, and a writ or restitution was issued forthwith to the Sheriff of Whitley County; that on said last mentioned date the sheriff, with said writ in his possession, visited the premises in question on two occasions, but was unable to locate anyone on said premises; that said sheriff again called at the premises on May 8, 1948, but again was unable to raise anyone. At 9:00 A.M. on May 8, 1948, the relators filed their appeal bond in the amount of $2,000 which was at said time approved by the respondent, but no stay of execution was entered by the court upon the approval by him of said appeal bond; that shortly thereafter on said date, the Sheriff of Whitley County delivered and read a copy of the writ of restitution to said relator, Fred M. Hawthorne; that four days later the relators, by petition, requested the court to enter an order for stay of execution on said judgment, which petition was overruled and the said court refused to stay the execution of said writ, and the said sheriff is now threatening to dispossess the said relators in the face of said appeal bond.
Rule 2-3 of this court, 1946 Revision, among other things, provides: *Page 355
"Enforcement of a judgment will be suspended during an appeal upon the giving of an adequate appeal bond with approved sureties. Prior to the filing of the transcript for appeal such bond shall be fixed and approved and the order of stay issued by the trial court or the judge thereof in vacation; thereafter by the appellate tribunal."
Under this rule it is our opinion that it was the duty of the respondent, upon approval of the appeal bond, to issue the order of stay and that after the approval of the same the enforcement of the judgment was suspended during the appeal.
It is also our opinion, that under the facts in this case, the order of stay was a matter of course and should have been entered without any request or petition therefor, on the part of the respondent, and was a matter upon which the respondent could not exercise discretion.
Respondent contends a levy had actually been made in this case, and that an order to stay execution must come before a levy; that an execution being one entire thing, cannot be divided once it is begun. Without deciding whether or not the levy in this case had been started, but, conceding for the purpose of this opinion, that the execution of said writ had begun, we are of the opinion that under the above rule of this court, relators' contention is not well founded.
When the rule, above set out, was adopted, and when this court provided therein, that the enforcement of the judgment will be suspended by the filing of an appeal bond, and that an order of stay shall issue, the court intended by this language that any execution issued before the filing of said bond shall be forthwith suspended and stayed as had been the law prior to that time, and as was then specifically provided for in both *Page 356 term time and vacation appeals. See §§ 2-3204 and 2-3209 respectively, Burns' 1946 Replacement.
The alternative mandate is made absolute and respondent is hereby ordered to forthwith enter an order in said cause No. 14102, Whitley Circuit Court, staying the enforcement of the judgment therein as herein indicated.
Emmert, J. dissents.