Opinion
Nos. 76162, 75602.
October 29, 1990.
ORDER
On consideration of the paperwork on file, this court assumes original jurisdiction and holds as follows:
1. This cause is treated as a motion for relief ancillary to the contestants' (petitioners') pending appeal in Cause No. 75,602. Tisdale v. Wheeler Bros., Okla., 599 P.2d 1104.
2. Contestants' plea for an order staying distribution of the decedent's estate pending their appeal is governed by the provisions of 12 O.S. 1981 § 974[ 12-974] rather than those of 12 O.S. 1981 § 968[ 12-968].
3. The trial court's August 15, 1990 order requiring the contestants to post a bond in double the amount of the value of the estate, as determined on April 17, 1990, is accordingly vacated.
4. Upon contestants' written application to be brought below, the trial judge shall, upon due notice to the opposite parties and an adversary hearing, determine the penal sum of the stay bond to be posted by the contestants in order to suspend the effectiveness of the trial court's decree of distribution pending appeal. The penalty on that undertaking shall not exceed the amount revealed by proof to be equal to that of all damages which the opposite parties may sustain by reason of delayed distribution of the decedent's estate, together with all costs that may be adjudged against contestants. The underscored language shall also constitute the condition of the bond.
5. The trial judge shall set the amount of stay bond and the time for its posting by the contestants. Not later than December 28, 1990, the clerk of the trial court shall transmit to the clerk of this court a certified copy of order that sets the penalty on the stay bond, together with a transcript of proceedings held below to decide this issue. This time limit shall not be extended. The temporary stay order of August 20, 1990, shall remain in effect pending completion of the bond-setting proceedings.
All Justices concur.