90 P.2d 650 | Okla. | 1939
This appeal is from an order denying motion to vacate the appointment of a receiver.
The district court of Custer county on November 8, 1937, entered a money judgment against appellant Jones and decreed an equitable lien therefor against a certain one-story brick business building in Clinton, Okla., equally owned by appellant and appellee, and in the possession of and occupied by appellant. Appeal from said judgment and decree was filed in this court on June 20, 1938, as case No. 28686,
On June 4, 1938, pursuant to an application filed April 26, 1938, the district court appointed a receiver to take charge of, preserve, pay taxes and assessments on, rent and receive rent and profits from said real property. Appellant filed motion to vacate the order appointing receiver on June 6, 1938. The motion was overruled, and appellant appeals.
Appellant charges that no hearing was had upon the application for appointment of receiver, notwithstanding the recital to the contrary in the order, and charges that no evidence was presented in support of the application.
The order appointing receiver in the instant case recites that the parties were present and evidence received. Though the court should not appoint a receiver unless the evidence warrant (53 C. J. 65-66), an order in a case of this character reciting that evidence was produced will not be vacated on the ground that evidence was not offered in the original proceeding for appointment, but the defendant in his attempt to vacate the receivership must show sufficient ground therefor. Harris v. National Loan Co.,
Defendant seeks reversal on the ground that the trial judge refused to certify his disqualifications upon application therefor duly presented. In this connection it is charged that the trial judge after refusing to certify his disqualifications forced defendant to trial without allowing him time to proceed by mandamus under the statute (section 2915, O. S. 1931, 22 Okla. Stat. Ann. sec. 575) to compel disqualification.
This circumstance has not injured defendant so far as his right to review of the matter is concerned. He was authorized to proceed by mandamus or to present his defense and preserve his rights throughout the trial. Schulte v. Hatcher,
Defendant asserts that the trial court was without jurisdiction to appoint a receiver for the property after judgment had been duly superseded and appealed to the Supreme Court. It is charged that such appointment materially affected the rights of the parties as adjudicated by the judgment, and was therefore null and void. Wagoner Oil Gas Co. v. Goad,
It appears from this record that the trial court by order in the main cause authorized the defendant to post cash bond in lieu of the customary statutory undertaking. We are not informed as to the conditions of the bond, whether it purports to protect defendant for any deficiency after sale of the premises, or for waste, or for the value of the use of the property pending appeal. These conditions are all important in determining the extent of plaintiff's protection under the supersedeas bond. We cannot presume anything concerning its conditions. It is true that section 543, O. S. 1931, 12 Okla. Stat. Ann. sec. 968, sets out the conditions of such bonds, but they are not presumed to contain such provisions, nor are they read into a bond as a part thereof, The extent of liability upon a supersedeas bond is to be gathered from the provisions of the bond. See Local Building Loan Ass'n v. Hall,
The judgment is affirmed.
BAYLESS, C. J., WELCH, V. C. J., and OSBORN and DAVISON, JJ., concur.