Merchants' Planters' Ins. Co. v. Crane

*714 KANE, J. This cause comes on to be heard upon motion of 'the defendants in error to affirm the judgment of the court below upon the following grounds: “First. That more than 40 days have intervened and expired, to wit, more than eighteen months, since plaintiff in error filed its petition in error herein, and counsel for plaintiff in error has not served any brief herein on counsel for defendants in error; nor has counsel for plaintiff in error filed any copies of brief with the clerk of this court, as required by Rule 7 [20 Okla. viii, 95 Pac. vi] of this court; and that no extension of the time within which to serve brief on counsel for defendants in error, or to file copies thereof, has been granted to plaintiff in error. “Second. That on April 21, 1910, plaintiff in error was adjudged insolvent by order of the district court in and for the county of Tulsa, state of Oklahoma, and A. B. Harn of Tulsa, Okla., was appointed receiver of plaintiff in error * * * and that it will be necessary for defendants in error to resort to the bond given in this cause by plaintiff in error in order to collect their said judgment; that according to the provisions of the bond given by plaintiff in error and taken by the clerk of the county court of Muskogee county herein, under the provisions of section 6078, Comp. Laws 1909, in order to stay execution of the judgment of the said county court, the sureties on said bond are only liable thereon ‘in case the said judgment or final order shall be affirmed in whole or in part by the Supreme Court of the state of Oklahoma.’ ” The motion to affirm must be sustained. On a recent day of the present term an order was issued dismissing the appeal herein for want of prosecution; but it has been made to appear to the court, that under such an order, the defendants in error would probably lose some rights against the bondsmen of the plaintiff in error. That order is hereby set aside, and this opinion affirming the judgment of the court below filed in its stead. The judgment of the court -below is affirmed. All the Justices concur.