Deming Inv. Co. v. Fariss

Deming Inv. Co. v. Fariss
1897 OK 62
50 P. 130
Decided: 07/30/1897
Supreme Court of Oklahoma

Supreme Court of the Territory of Oklahoma.

DEMING INV. CO.
v.
FARISS et al.

July 30, 1897.

Syllabus by the Court.

¶0 Where a party obtains judgment in a foreclosure proceeding, and in such judgment a sale of real property is ordered, and an appeal is taken therefrom, and the appellant therein gives a supersedeas bond, which is approved by the clerk of the court, an injunction will lie restraining the sale of the real property under the judgment of foreclosure notwithstanding the supersedeas bond may not in terms comply with all the requirements of the statute.

Redick, Lewis & Snyder, for appellant.
Allen & Allen, for appellees.

DALE, C. J.

¶1 This appeal comes up from Oklahoma county, and is taken to vacate an injunctional order made by the district court of that county, wherein the Deming Investment Company was enjoined from selling certain real estate to satisfy a judgment obtained upon a mortgage. It appears that at the October, 1896, term of the district court of Oklahoma county the Deming Investment Company, in a suit against Fariss and others upon a note and mortgage, obtained a judgment for a sum of money, and a decree directing the sale of the mortgaged premises to satisfy the judgment; that Fariss appealed from the judgment, and undertook to supersede the same by giving a bond in a sum double the amount of the judgment and costs. The bond was approved by the clerk of the court, and the appeal filed in the supreme court. Notwithstanding such supersedeas bond, the Deming Investment Company asked for and obtained from the clerk of the district court an order of sale, and were proceeding to sell the property to satisfy their judgment, when, upon application of Fariss to the district court, the sale was enjoined pending the appeal in the supreme court. To vacate such order the Deming Investment Company brings the case here, and assigns numerous errors. It will not be necessary to consider all of these, as we think the entire question may be disposed of without such consideration. Under the law governing appeals (section 4447, St. Okl.) authority is granted to supersede judgments and it is provided that the clerk of the court in which any judgment is rendered may take and approve the bond. In the case under consideration the clerk had accepted and approved the bond before the order of sale issued. The fact that the bond may not have conformed in all particulars to the statute did not make the instrument a nullity, but, if defective, the remedy was by motion to the court below for additional security, or for a correction of the bond. As we view this matter, the approval of the bond by the clerk in a case wherein the statute directs him to accept and approve a bond, as is the case under our statute, is tantamount to an order of the court, and supersedes the judgment. The only way by which supersedeas may be set aside is by direct attack. It cannot be ignored, or an execution issued, as long as it remains on record, until its effect has been tested in this manner. In this case it was sought to disregard the bond because one of the conditions required by the statute was not inserted therein. The bond was for double the amount of the judgment and costs, but did not provide that while the possession of the property was in the appellant he would not commit or suffer to be committed any waste thereon, and that, if the judgment complained of should be affirmed, he would pay the value of the use and occupation of the premises, etc. Whether or not such provision should have been in the bond, it is unnecessary to decide. The bond, as it was drawn, was accepted and approved. The clerk had the right, under the law, to act in the matter, and, having such jurisdiction, his action must stand until set aside; and if, upon motion to the court, relief such as the parties deem themselves entitled to cannot be obtained, an appeal will lie to this court; but until the bond as accepted is held insufficient, or the action of the clerk in approving the same be vacated, the judgment is superseded. The judgment of the lower court is affirmed.

¶2 KEATON, J., having presided at the trial of the cause in the court below, not sitting; the other justices concurring.