Opinion
No. 22234
September 19, 1933.
(Syllabus.)
1. Appeal and Error — Insufficiency of Supersedeas Bond — Procedure for Attack.
Where a bond has been given to supersede a judgment, and the judgment has been superseded thereby, the appropriate remedy for attack on the sufficiency thereof is to move in the court having jurisdiction over the action for an order requiring an amendment of the bond or the filing of a new bond, and if such an order is not complied with, the court having jurisdiction of the action may vacate the order of supersedeas.
2. Same — Order of Supersedeas Vacated.
Under the record in this case, the order of supersedeas entered in the district court of Oklahoma county should be, and the same is hereby, vacated and set aside.
Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.
Action in an accounting and partnership by M.L. Harris against W.B. Grant. From a judgment in favor of the plaintiff, defendant appeals. Order of supersedeas vacated and set aside; motion to dismiss appeal denied.
Everest, Dudley Brewer, for plaintiff in error.
Edwards and Robinson, for defendant in error.
M.L. Harris, the defendant in error herein, has moved the court to dismiss the appeal or in the alternative to compel the giving of supersedeas bond or to award the right to issue execution.
On the 18th day of July, 1932, it was made to appear to this court that the bond formerly given herein to protect the right of M.L. Harris was entirely insufficient, and the court ordered the appellant to file an additional supersedeas bond in the amount of $3,500 within 20 days from the 8th day of July, 1932.
That bond has not been filed, nor has any additional bond in lieu thereof been filed.
Under the authority of Kirk v. Leeman, 165 Okla. 261, 18 P.2d 1088, the motion to dismiss the appeal is denied, as the appellant has the right of appeal without regard to the worth of the supersedeas bond.
However, it was held therein that, unless the order of the court was complied with and a new bond made, the proper remedy for the defendant in error was to vacate the order superseding the right to issue execution and permit the plaintiff in the court below to seek such remedy by execution as he might wish.
The motion to dismiss is, therefore, denied, but it is the order of this court that the order superseding the judgment of the district court of Oklahoma county be, and the same is hereby, vacated and set aside, and the plaintiff below is permitted to issue execution as if no, bond had been executed.