As the affidavit of the plaintiffs in error has not been controverted, for the purposes of this motion, we assume it to be true. This raises the question whether a plaintiff in error abandons his appeal when he is unable to give a supersedeas bond and pays the judgment in order to prevent the loss of the property by sale under execution. In our opinion, both on reason and authority, such payment does not operate as an abandonment of the appeal. In Auld v. Kimberlin, 7 Kan. 601, it is held:
"A payment of a judgment made to a sheriff with an execution in his hands to enforce payment does not preclude the defendant from bringing his case to this court for review."
In Kerr v. Reece, 27 Kan. 469, it is held that a payment of the judgment made to the sheriff, with an execution in his hands to enforce payment, is not a voluntary payment, and does not preclude the defendant from challenging improper proceedings and the validity of the judgment of the trial court. This case cites with approval and follows Auld v.Kimberlin, supra. In Johnson v. Clark, 29 La. Ann. 762, it is held:
"The payment of a fieri facias" giving authority to "the sheriff to seize and sell defendants' goods, is not of *Page 532 itself conclusive of his acquiescence in the execution of judgment against him."
See, also, Grim v. Semple, 39 Iowa, 570; Plano Mfg. Co. v.Rasey, 69 Wis. 246, 34 N.W. 85.
On principle this rule must be correct. The right to appeal is given by statute, and a supersedeas is only to prevent the execution of the judgment pending the appeal, and the failure to give the supersedeas bond does not abrogate the right of appeal given by the statute. We do not decide that, if the plaintiff voluntarily performs the judgment, he can still prosecute his appeal, nor do we decide that, if the right asserted by appeal has been taken away by a provision of law, the appeal can still be prosecuted. In this last class of cases is included that class where prior to statehood a party appealed from the refusal to grant him a license to sell liquor, and pending the appeal the prohibition clause of the Constitution became effective. In that case the right sought to be enforced by the appeal was completely done away with, and in passing upon the question the court would have been deciding a moot question. The case of Price v. County Com'rs, 8 Okla. 121,56 P. 959, is not in conflict, for in that case the parties did voluntarily compromise the subject-matter of the litigation. Tinker v. McLaughlin-Farrar Co., 29 Okla. 758,119 P. 238, is not in conflict with this decision, for in that case it does not appear that a settlement of the judgment was made to prevent a sale of the defendant's property under execution. In that case it appears that the judgment had been settled without stating in what manner, and to support the decision the court cites the case of Reese v. Chaney,28 Okla. 501, 114 P. 608, and in that case it appears that there was a voluntary settlement of *Page 533 all matters in controversy, as in the case of Price v. Board ofCommissioners, supra.
We therefore recommend that the motion to dismiss be denied.
By the Court: It is so ordered.