Stay of Execution – How to Vacate an Assumption of Involuntary Relief
Stay of execution is the end of a legal proceeding while the matter is under appeal and the legal issues involved are still being reviewed. The stay may be requested by one party or the other, either on their own behalf or as a plaintiff’s counsel. A stay of execution is effective only while the case is pending in a particular court and stays effective as to those parties who are seeking to enforce the order temporarily.
A motion to stay is generally granted by the court based on one of four reasons: the motion is requested by the defendant/plaintiff, it is requested by the attorney for the opposing party, it is granted by a judge for the purpose of preventing abuse of process, or it is an emergency motion. A judge may extend the stay if he/she is convinced that there is likely to be an abuse of process or if the public interest in maintaining the integrity of the courts is served by having the case continue in spite of the stay. Stay of execution can be stayed at any time before the hearing of the case; however, it will not remain in force past the hearing. In addition to the right to ask for a stay of execution, another party can also request the courts to lift the stay. However, if the motion to lift the stay is not made within the time allowed by the court, or the plaintiff fails to file the notice within the applicable period, then the stay shall automatically be lifted.
To obtain relief from the stay of execution, a plaintiff in a civil suit must file a motion to lift the stay. To do so, he/she must be sure that the plaintiff has been properly served with the complaint, and that the complaint is not stale or has been withdrawn. To move for a stay of the impending hearing date, he/she must file a written request with the court on or before the day the judge is expected to announce a date for the hearing. He/she must also be sure that the date of the scheduled hearing has not been changed by reason of an order by the court that was not duly taken care of.