dissenting in part; concurring in part.
Plaintiffs filed this action after the judgment entered in the earlier FED action was finally affirmed on appeal. *603While the extended appeals were pending, the lease under which defendants claimed the right to possession expired on September 1, 1987. On that date, plaintiffs made a written demand on defendants to vacate the premises, because the lease had expired by its terms. Defendants failed to vacate.
The appeal bond that defendants posted in connection with their appeal from the judgment in the FED action satisfied ORS 19.040(l)(b); therefore, it had the effect of staying the execution of the FED judgment pending appeal.
In this action, CML contends that its liability for occupying the premises, even for the time after the expiration of the lease, is limited by the face amount of that supersedeas bond. The majority takes the other extreme in holding that the amount fixed by the bond has nothing to do with liability for remaining in possession pending the outcome of all appeals. Because I disagree with that conclusion, I dissent from that part of the opinion.
The majority relies on German Loan Society v. Kern, 38 Or 232, 63 P 1052 (1900). That opinion, however, holds exactly the opposite of what the majority claims for it: The bond fixes the maximum amount that the appellant must pay; it does not require that the appellant pay the maximum amount, but only the value of the use and occupation of the property, not to exceed the sum specified. Accordingly, the bond does set the maximum that CML must pay for the use of the property for the period to which the judgment in the FED related, which does not include occupancy after the expiration of the lease.
The FED judgment entitled plaintiffs to possession because of CML’s failure to pay rent for December, 1984, and January, 1985. It did not purport to affect the parties’ rights after the lease, by its terms, expired on September 1, 1987. Accordingly, I would hold that the supersedeas bond does fix the maximum amount that CML must pay plaintiffs for use of the property until the expiration of the lease on September 1, 1987. Thereafter, plaintiffs are entitled to the fair market rental and to damages for trespass.
I concur with the rest of the majority opinion.