Summary
holding that the trial court is not precluded from executing its judgment, even though an appeal is pending
Summary of this case from State Bd. of Exam. v. Lopez-SamayoaOpinion
No. 24621
Decided April 27, 1970.
Original proceeding seeking relief in the nature of mandamus to require district court to enter judgment against garnishee and others in furtherance of execution upon money judgment in favor of petitioner and against judgment debtors in case pending on writ of error. Rule to show cause issued.
Rule Made Absolute.
1. JUDGMENT — Lack of Stay — Proceedings — Execution — Proper. Where a judgment is not stayed by proper order or bond, there is no impediment against proceedings in the trial court for the purpose of executing on the judgment.
2. APPEAL AND ERROR — Pending — Stay — Automatic — Negative. A pending writ of error or an appeal does not automatically stay execution.
3. EXECUTION — Lack of Stay — Writ of Error — Appeal — Automatic — Negative — Refusal to Enter Orders — Error. Where no stay of execution on judgment was in effect and trial judge indicated that pending writ of error or appeal automatically stayed execution, held, in so ruling, trial judge erred, especially when he refused to enter orders in furtherance of execution.
Original Proceeding.
Mason, Reuler and Peek, William M. Peek, for petitioner.
No Appearance for respondents.
This is an original proceeding. The petitioner seeks relief in the nature of mandamus to require respondents to enter a certain judgment against a garnishee and other orders in furtherance of execution upon a judgment for $5,806.78 in favor of petitioner and against judgment debtors in a case which is pending on writ of error. The praecipe for writ of error was originally issued out of the Supreme Court in the case entitled Archie Wainwright and D.M. Wainwright d/b/a Park Oil Company v. John Jerome Lay d/b/a J.J. Lay Plumbing and Heating. That case has since been transferred to the Colorado Court of Appeals for determination and is pending in that court. No stay of execution is in effect.
On February 6, 1970, we issued a rule on the respondents to show cause within 20 days why the relief prayed for should not be granted. No response has been made.
[1-3] It is elemental that where a judgment is not stayed by proper order or bond, there is no impediment against proceedings in the trial court for the purpose of executing on the judgment. A pending writ of error or an appeal does not automatically stay execution. The respondent judge erroneously indicated otherwise when he refused to enter orders in furtherance of execution. See England v. Colorado Agency, 145 Colo. 310, 359 P.2d 1 and Mulligan v. Smith, 32 Colo. 404, 76 P. 1063.
The respondents are therefore directed to enter any proper judgment against the garnishee and to enter any other proper orders pursuant to law or the Colorado Rules of Civil Procedure for the enforcement and collection of judgments.
Rule made absolute.
MR. CHIEF JUSTICE McWILLIAMS not participating.