Respondent moves for an order compelling appellant to obtain a new surety on a supersedeas bond on the ground that one of the sureties on the supersedeas bond previously filed has become insolvent, and has left the state, which facts are not denied.
While California has held that, in the absence of a statute expressly empowering the appellate court to make such an order, it has no right so to do (Macomber v. Conradt, 4 Cal. Unrep. 723, 37 P. 382); the weight of authority and the better rule is the other way.
In furtherance of justice appellate courts have the inherent power, after an appeal has been perfected and where, because of the changed conditions of the surety, the originalsupersedeas bond has become insufficient, to require the filing of a new bond with adequate sureties. (Bock v. Sauk CenterGrocery Co., 100 Minn. 71, 10 Ann. Cas. 802, 110 N.W. 275, 9 L.R.A., N.S., 1054; American Brewing Co. v. Talbot,135 Mo. 170, 36 S.W. 657; State v. Klein, 137 Mo. 673, 39 S.W. 272;Tulleys v. Keller, 42 Neb. 788, 60 N.W. 1015; Williams v.Williams, 19 Colo. 19, 34 P. 285; O'Reilly v. Edrington,96 U.S. 724, 24 L. ed. 659; Hudson v. Parker, 156 U.S. 277,15 Sup. Ct. 450, 39 L. ed. 427; Pulte v. Wayne Circuit Judge,47 Mich. 560, 11 N.W. 385; Bigler v. Waller, 12 Wall. (U.S.) 149,20 L. ed. 260; Horstman v. Little, 98 Tex. 342, 83 S.W. 679;Bailey v. New York Arcade R. Co., 113 N.Y. 615, 20 N.E. 594;Florida orange Hedge Fence Co. v. Branham, 32 Fla. 289,13 So. 281.) And in cases of default to so file such bond to vacate the stay. *Page 235
The motion is therefore granted and the appellant is ordered, within twenty days from receiving notice of this opinion, to file a new and adequate bond with the clerk of this court. Costs awarded to respondent.
William A. Lee, C. J., and Wm. E. Lee and Taylor, JJ., concur.