OSAGE OIL & REF. CO. v. DICKASON-GOODMAN LBR. CO.

OSAGE OIL & REF. CO. v. DICKASON-GOODMAN LBR. CO.
1924 OK 1018
231 P. 477
108 Okla. 14
Case Number: 13813
Decided: 11/12/1924
Supreme Court of Oklahoma

OSAGE OIL & REF. CO. et al.
v.
DICKASON-GOODMAN LBR. CO.

Syllabus

¶0 1. Appeal and Error--Liability on Supersedeas Bond--Effect of Bankruptcy Proceeding Against Principal.
The mere filing of proceedings in bankruptcy, pending and undetermined, does not affect the power of this court to render judgment against the sureties on a supersedeas bond under the provisions of section 797, Comp. Stat. 1921.
2. Same.
The liability of sureties on a supersedeas bond in an appeal to this court is to be determined by the strict letter of the bond, and cannot be affected by the bankruptcy or insolvency of the principal, where the condition of the bond has been met by affirmance on appeal.

W. N. Redwine and J. E. Whitehead, for plaintiffs in error.
John F. Kerrigan and Ross & Thurman, for defendant in error. Robt. J. Boone, for sureties on supersedeas bond.

WARREN, J.

¶1 In this case there was an appeal from the judgment of the district court of Oklahoma county, wherein the plaintiff, Dickason-Goodman Lumber Company, recovered from the defendants, Osage Oil and Refining Company and James E. Whitehead, on the 21st day of March, 1922, a judgment in the sum of $ 12,143.41. On April 29, 1922, a supersedeas bond in the sum of $ 24,500 was filed in the district court of Oklahoma county and duly approved by the court clerk with Wm. W. Gruber and R. V. McMullen as sureties, superseding said judgment as to both defendants and on which both defendants appeared as principals. The judgment was affirmed by this court in an opinion handed down on October 14, 1924. Petition for rehearing was filed, and prior to action thereon defendant in error filed its motion for judgment in this court against the sureties on the supersedeas bond under the provisions of section 797, Comp. Stat. 1921. In response to this motion for judgment against the sureties, plaintiffs in error file in this court a suggestion of bankruptcy of the plaintiff in error, the Osage Oil & Refining Company, and object to any judgment against the sureties on the supersedeas bond because of such bankruptcy. The response of the plaintiffs in error shows to the court that on August 1, 1924, a petition in bankruptcy was filed against the Osage Oil & Refining Company, one of the plaintiffs in error, and such petition is now pending and undetermined. It is the theory of the plaintiffs in error that the proceedings in bankruptcy discharge both the principals and sureties on the supersedeas bond. In support of this theory there is cited the following authorities: Odell v. Wootten, 38 Ga. 224; Goyer Co. v. Jones, 79 Miss. 253; Fontaine v. Westbrooks, 65 N.C. 528; Sigler v. Shehy, 15 Ohio 471; Kenley v. Hughes, 1 Brown (Pa.) 258; Martin v. Kilbourne (Tenn.) 12 Heisk. 331; Thomas v. Cole (Tenn.) 10 Heisk, 411. An examination of the above authorities fails to convince us of the correctness of the position of plaintiffs in error even had there been an actual adjudication in this case, which does not appear.