Supplemental Opinion on Petition for Rehearing
One of defendants in trial court in his “Petition for Rehearing and Application to Modify Opinion by Plaintiff in Error Arlie Hamburger,” states in effect that this court has by the opinion now extant in this case charged his property with a lien, giving “to the defendant all the advantages of an attachment”, etc. In supplement thereto he argues that we have overlooked 12 O.S. 1957 Supp. § 706.2 (of provision that a judgment debtor may deposit a sufficient amount of cash with the court clerk pending an appeal and discharge the lien of judgment and any attachment). Here the appeal is from a judgment refusing to vacate a previous judgment. In view of our further holding herein we do not find it necessary to pass upon the applicability of the cited statute to this precise situation.
Said defendant in his “Response of Plaintiff in Error to Petition for Rehearing of Defendant in Error” states, “Plaintiff in error agrees that a reversal of the judgment without more frees his real estate from the lien of said judgment but proposes to give an undertaking to be approved by the clerk of the court in an amount sufficient to fully protect defendant in error as a guarantee of good faith and an assurance that any judgment Fry can secure will be paid.”
Defendant in error urges that we vacate our opinion which is supplemented hereby and affirm the action of the trial court in refusing to vacate the default judgment of which plaintiffs in error, defendants below, complain.
*1094Our statute, 12 O.S.19S1 § 103'6, after referring to vacation and modification of judgments, provides in part as follows:
“On the granting of any such order, the court, or judge, may require the party obtaining any such order to enter into an undertaking to the adverse party to pay all damages that may he caused by granting of the same.”
In the case of Halliburton v. Illinois Life Ins. Co., 170 Okl. 360, 40 P.2d 1086, 1089, we quoted the foregoing statute (then cited as O.S.1931 § 561) and then said:
“ * * * While the proceeding before us concerns the power of a court to vacate a judgment pursuant to a motion filed within term and is therefore not dependent upon the above statute, the statute quoted is declarative of the public policy of this state and provides one of the methods by which the judgment creditor may be protected.
“Similarly this court in the case of Pettis v. Johnston, 78 Okl. 277, 190 P. 681, 682, said in syllabus 15: ‘A court of equity may impose such conditions to the granting of relief against a judgment not void on its face as appear equitable under the circumstances of each particular case, and also as provided for by section 5272, Rev. Laws 1910. (See paragraph 5, opinion.)’
“Thus the policy of protecting judgment creditors by imposing conditions in proper cases, when a default judgment is opened or vacated, has received both legislative and judicial approval in this jurisdiction.
“* * * the court may require, as a condition to vacating the judgment, a bond to secure the payment of the amount of any future judgment which plaintiffs may obtain, said bond not to exceed in amount the value of the lands upon which plaintiff’s judgment attached as a lien, and upon which execution has been heretofore entered. Bancroft’s Practice, p. 2483; H. C. Behrens Lumber Co. v. Lager, 26 S.D. 160, 128 N.W. 698, Ann.Cas.1913A, 1128; Caponigri v. Cooper, 70 App.Div. 124, 74 N.Y.S. 1116; Halter v. Spokane-Soap Works Co., 12 Wash. 662, 42 P. 126.”
We adhere to our decision herein reversing the trial court’s order and judgment overruling defendants’ motion to vacate default judgment upon the condition stated in our opinion announcing such decision but with the further provision that either, any or all of the defendants in the trial court may be relieved of the duty of stipulating that any judgment against them to be hereafter rendered shall operate as a lien upon their real estate, as of and from January 21, 1957, as provided in such opinion reversing, upon his or their depositing with the clerk of the trial court, a cash or surety bond to be approved by the trial court in an amount sufficient to cover the judgment vacated and all costs that are or may be properly chargeable to the defendants; provided, in the event that such bond is not posted by one or more of the defendants, that the judgment lien of the judgment herein vacated so stipulated to by either, any or all of the defendants shall continue in force against the property of such defendant or defendants until superseded by a final decision on the merits of this cause of action.
It is further ordered that such judgment of the trial court be not vacated as to either, any or all of such defendants, if any as shall fail, neglect or refuse within thirty (30) days from the date of spreading of mandate in the trial court to either stipulate as required by the opinion supplemented hereby or deposit bond as provided by this supplemental opinion.
WELCH, JOHNSON, BLACKBIRD and JACKSON, JJ., concur. DAVISON, C. J., and HALLEY and IRWIN, JJ., dissent.