GARTON v. WOLLESON

GARTON v. WOLLESON
1934 OK 213
31 P.2d 588
167 Okla. 631
Case Number: 23762
Decided: 04/03/1934
Supreme Court of Oklahoma

GARTON et al.
v.
WOLLESON.

Syllabus

¶0 1. Appeal and Error--Vacation of Order of Supersedeas Where Plaintiff in Error Fails to Give New Bond as Ordered.
Where the plaintiff in error is given time to furnish an additional supersedeas bond, and the time provided in the order expires and no further order is obtained by the plaintiff in error or excuse offered for failure to furnish said bond, this court may vacate the order superseding the judgment.
2. Same.
Under the record in this case, the order of supersedeas entered in the district court of Noble county should be, and the same is hereby, vacated and set aside.

Appeal from District Court, Noble County; John S. Burger, Judge.

Action on a note by Thomas C. Wolleson against C. E. Garton et al. From a judgment for the plaintiff, defendants appeal; on a motion to vacate a supersedeas bond, order of supersedeas vacated.

H. A. Johnson and Henry S. Johnston, for plaintiffs in error.
Cress, Tebbe & Cress, for defendants in error.

PER CURIAM.

¶1 This action was commenced in the district court of Noble county by the filing of a petition on a promissory note, and from a judgment for the plaintiff, the defendants have appealed.

¶2 On the 6th day of February, 1934, after a motion had been filed, this court entered its order directing the plaintiff to furnish a supersedeas bond. That order has not been complied with, and no time has been obtained in which to furnish the bond.

¶3 A motion has been filed to vacate the order superseding the judgment obtained in the district court. In the case of Kirk v. Leeman, 165 Okla. 261, 18 P.2d 1088, this court held:

"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."