
    Gurney v. Gurney.
    The final judgment of the district court was an order of partition of real estate, and the cause was remanded to the common pleas for execution, where an order of sale was made, the property being incapable of division. The case is pending here on error, to reverse the judgment of the district court.
    
      Held: That under subdivision 3 of section 6718 of the Revised Statute's, the court of common pleas, or a judge thereof, may fix the amount of the undertaking for stay of proceedings on the mandate.
    
      Motion for stay of execution in cause No. 1077 on the general docket, which is pending here on error, to reverse the judgment of the district court of Licking county.
    It appears that the district court made an order of partition of real estate, and remanded the case to the common pleas for execution of the order, and that such proceedings have been had, that the property has been appraised, being found incapable of division, and has been ordered to be sold. It further appears that on a like motion to this, in the court of common pleas, that court held, that it had no power to fix the amount of the undertaking for stay of execution.
    This motion is now made here for the same purpose.
    
      Charles H. Kibler and Smythe da Sprague, for motion.
    
      J. Buckingham, contra.
   By the Court.

Under subdivision 3 of section 6718 of the .Revised Statutes, the court of common pleas or any judge thereof may fix the amount of undertaking for a stay of execution of the proceedings in that court, while the case is pending here on error.

Motion overruled.  