Whitney v. Harris , 166 Okla. 295 ( 1933 )

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.

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.

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."

The motion to dismiss is therefore denied and motion for judgment on supersedeas bond is denied, but it is ordered that the order and judgment of the district court of Oklahoma county superseding the judgment in that court be, and the same is hereby, vacated and set aside.