INTER-OCEAN OIL CO. v. MARHSALL

INTER-OCEAN OIL CO. v. MARHSALL
1933 OK 400
23 P.2d 151
164 Okla. 134
Case Number: 21169
Decided: 06/20/1933
Supreme Court of Oklahoma

INTER-OCEAN OIL CO.
v.
MARHSALL

Syllabus

¶0 1. Appeal and Error--Procedure Where Supersedeas Bond Unsatisfactory.
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.
2. Same--Supersedeas Order of District Court Vacated.
Under the record in this case, the order of supersedeas entered in the district court of Tulsa county be, and the same is hereby vacated and set aside.

Appeal from District Court, Tulsa County: John Ladner, Judge.

Action by May Marshall against the Inter-Ocean Oil Company et al. for damages. Judgment for plaintiff, and defendants appeal. Motion to dismiss denied and order of the district court superseding judgment vacated.

Poe, Lundy & Morgan and H. R. Duncan. for plaintiffs in error.
E. M. Conner, for defendant in error.

OPINION: PER CURIAM.

¶1 On the 13th day of March 1930, the petition in error and case-made was filed herein, and since that time all parties have briefed this cause on the merits. On July 3, 1932, motion to require supersedeas bond was filed by the defendant in error, and on April 25, 1933, this court entered its order requiring the plaintiff to file a surety bond to be approved by the clerk of the trial court.

¶2 On June 1, 1933, motion to dismiss this appeal was filed based upon the failure of the plaintiff in error to comply with the order of the court made April 25, 1933.

¶3 A response to this motion has been filed in which it is stated that it is not required that a supersedeas bond be given in order to permit the supreme Court to review the case on appeal.

¶4 In the Kirk v. Leeman Case, decided February 7, 1933, and reported in 163 Okla. 236, 18 P.2d 1088, justice Swindall, speaking for the court, said:

"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.

"Under the record in this case, the order of supersedeas entered in the district court of Woods county be and the same is hereby vacated and set aside."