Belsky v. Druzstvo Cesko-Narodni Sine , 101 Okla. 137 ( 1924 )

This case is before us on the motion of the defendants in error to dismiss the appeal.

It appears that on July 18, 1923, the plaintiffs in error, as plaintiffs below, filed in the district court of Oklahoma county their petition seeking the dissolution of the Druzstvo Cesko-Narodni Sine, a corporation, and praying the appointment of a receiver for all of the property of said corporation; on said day a notice was issued to the defendants notifying them that the plaintiffs would on the 8th day of August, 1923, apply to the court for the appointment of a receiver for the property of the corporation. On the 8th day of August, 1993, the petition in said cause was presented to the court, and upon examination thereof the court made an order denying the application for a receiver, from which the plaintiffs have appealed.

It is disclosed by the motion to dismiss the appeal and the exhibit attached thereto that on November 17, 1923, the court sustained the demurrer of the defendants to the amended petition of the plaintiffs, and that the plaintiffs took ten days within which to elect whether or not they would plead further; that said ten days expired and no election having been made, or pleading of any character filed by the plaintiffs, the court on the 15th day of December, 1923, made its order dismissing said cause.

No supersedeas bond was filed, and no order made staying proceedings in the lower court pending the appeal. Under these circumstances the appeal did not stay proceedings in the trial court (Cusher v. Ricketts, 72 Oklahoma, 179 P. 593; Hogan v. District Court, 25 Okla. 871, 108 P. 375), and the court had the power to dismiss the cause for want of prosecution. Sweeney v. Village of Ellsworth (Minn.) 159 N.W. 1067.

The cause in which a receiver was sought having been dismissed, the appeal from the order refusing to appoint a receiver presents nothing but a moot question.

The appeal is dismissed.

JOHNSON, C. J., and KENNAMER, COCHRAN, BRANSON, and MASON, JJ., concur.