Garton v. Wolleson

This action was commenced in the district court of Noble county by the filing of a petition on a promissory note, and from a judgment for the plaintiff, the defendants have appealed.

On the 6th day of February, 1934, after a motion had been filed, this court entered its order directing the plaintiff to furnish a supersedeas bond. That order has not been complied with, and no time has been obtained in which to furnish the bond.

A motion has been filed to vacate the order superseding the judgment obtained in the district court. In the case of Kirk v. Leeman, 165 Okla. 261, 18 P.2d 1088, this court held:

"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."

It is therefore the order of this court that the order entered by the trial court on the 5th day of February, 1932, superseding said judgment, be, and the same is hereby, vacated and set aside, and the defendant in error is permitted to proceed in the district court as if no order of supersedeas had been entered.