Opinion
No. 23629
Opinion Filed July 12, 1933,
(Syllabus.)
Appeal and Error — Order for Filing Supersedeas Bond — Upon Failure to File Bond, Order Staying Execution Vacated.
Where this court has entered its order for the filing of supersedeas bond by the plaintiff, and the said order has not been complied with, and in which order a stay of execution of the district court of a county is at the same time entered, when the said plaintiff fails to comply with the order of this court, this court will vacate its order staying such execution and permit execution to issue.
Appeal from District Court, Lincoln County; Hal Johnson, Judge.
Action by J.W. Cherry against Prentiss Sharp et al. Judgment for defendants, and plaintiff appeals. Order staying execution vacated.
Cox Cox and E.A. Foster, for plaintiff in error.
Erwin Erwin, for defendants in error.
On May 10, 1932, this court entered its order granting a stay of execution in cause No. 11103, in the district court of Lincoln county, pending the application for supersedeas bond in this court and ordering that upon the filing of supersedeas bond by the plaintiff in the sum of $5,000, such stay would be effective as a permanent order.
On June 20, 1932, a motion to vacate this stay of execution and order allowing supersedeas bond was filed based upon the fact that there had been no compliance with the requirement of the order made by Chief Justice Riley. A response has been filed under date of June 24, 1932, admitting that they have been unable to comply with the order of the court, but attempting to excuse their failure to comply with the order of the court upon numerous grounds.
This court has held in Kirk v. Leeman, 163 Okla. 236, 18 P.2d 1088, that upon failure to comply with the order of the court requiring execution of a supersedeas bond for the purpose denominated in the order staying execution thereon, this court will vacate the order staying execution and permit execution to issue.
It is therefore the order of this court that the order heretofore made on May 10, 1932, staying execution in cause No. 11103 in the district court of Lincoln county, be, and the same is hereby, vacated and the plaintiff in that cause is permitted to issue execution thereon or seek such remedy as the law provides in the absence of a stay of execution.