WHITNEY v. HARRIS.

WHITNEY v. HARRIS.
1933 OK 666
27 P.2d 818
166 Okla. 295
Case Number: 22917
Decided: 12/12/1933
Supreme Court of Oklahoma

WHITNEY
v.
HARRIS.

Syllabus

¶0 Appeal and Error--Vacation of Order of Supersedeas for Failure to File New Bond Required.
Where, pending the appeal, this court requires that a new supersedeas bond be filed, and that order is not complied with, this court, upon application of the proper party, will vacate the order of the district court superseding the judgment of the trial court.

Appeal from District Court, Oklahoma County; Wyley Jones, Judge.

Action by V. V. Harris against E. W. Whitney for the recovery of a money judgment. From a judgment in favor of the plaintiff, defendant appeals. Order superseding the judgment vacated.

W. C. Wood, for plaintiff in error.
Everest, McKenzie, Halley & Gibbens and Barritt Galloway, for defendant in error.

OPINION: PER CURIAM.

¶1 This appeal was filed October 6, 1931; after a motion was filed the plaintiff in error was required to furnish a new supersedeas bond within 30 days from that date.

¶2 This order not having been complied with on November 27, 1933, the defendant in error filed his motion to dismiss for failure to comply with the order of the court heretofore entered regarding the furnishing of an additional supersedeas bond. In December, a response to this motion was filed admitting the inability to make the bond as required by this court, but stating that the plaintiff in error has the right of appeal in any event.

¶3 In the case of Kirk v. Leeman, 165 Okla. 261, 18 P.2d 1088, this court said:

"If the defendant in error, or person for whose benefit a supersedeas bond is given, is dissatisfied with the bond for any reason, the appropriate practice is to move, in the court having jurisdiction of the cause, for an order that the bond be amended or a new bond be filed within a time designated by the court, and on default thereof, that the order of supersedeas be vacated and set aside."