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Rule 364. Supersedeas Bond (1946)

TEXT

(a) An appellant desiring to suspend the execution of the judgment may do so by giving a good and sufficient bond to be approved by the clerk, payable to appellee in a sum at least the amount of the judgment, interest and Costs, conditioned that such appellant shall prosecute his appeal or writ of error with effect; and in case the judgment of the Supreme Court or the Court of Civil Appeals shall be against him, he shall perform its judgment, sentence or decree, and pay all such damages as said court may award against him.

(b) Where the judgment is for the recovery of land or other property, the bond shall be further conditioned that the ap­pellant shall, in case the judgment is affirmed, pay to the appellee the value of the rent or hire of such property in any suit which may be brought therefor.

(c) Where the judgment is for the recovery of or foreclosure upon real estate, the appellant may supersede the judgment in so far as it decrees the recovery of or foreclosure against said specific real estate by giving a supersedeas bond in an amount to be fixed by the court below, not less than the rents and hire of said real estate; but if the amount of said supersedeas bond is less than the amount of the money judgment, with interest and Costs, then the appellee shall be allowed to have his execution against any other property of appellant.

(d) Where the judgment is for the recovery of or foreclosure upon specific personal property the appellant may super­sede the judgment in so far as it decrees the recovery of or foreclosure against said specific personal property by giving a supersedeas bond in an amount to be fixed by the court below, not less than the value of said property on the date of rendition of judgment, but if the amount of said supersedeas bond is less than the amount of the money judgment with interest and costs, then the appellee shall be allowed to have his execution against any other property of appellant.

(e) Where the judgment is for other than money or property or foreclosure, the bond shall be in such amount to be fixed by the court below as will secure the plaintiff in judgment in any loss or damage occasioned by the delay on appeal.

(f) Where the judgment is one involving the care or custody of a child, the ap­peal, with or without a supersedeas bond, shall not have the effect of suspending the judgment as to the care or custody of the child, unless it shall be so ordered by the court entering the judgment. However, the appellate court, upon a proper showing, may permit the judgment to be superseded.

Amended by order of Oct. 10, 1945,eff. Feb. 1, 1946: Subdivision (f) has been added.

ADVISORY OPINIONS

Question: In case of appeal from an entire judgment for damages can a part of such judgment be superseded by Rule 364, and if such a judgment is not superseded, may it be the basis of garnishment upon judgment as provided for in R. S. Art. 4076 and Rule 657?

Answer: Rule 364, Subd. a, requires the bond to be in the amount of the judg­ment and contains no exception that would allow supersedeas of a part of an entire judgment for damages where ap­peal is taken from such judgment.

Rule 657 expressly makes such a judg­ment "final and subsisting for the purpose of garnishment from and after its date of rendition, unless a supersedeas bond shall have been approved and filed."

5 Tex. B.J. 53 (1942) reprinted in 8 Tex. B.J. 7 (1945).

Question: Under Rule 364, subdivision (a), providing that appellant desiring to suspend the execution of a judgment may do so by giving a bond “in a sum at least the amount of the judgment, interest and costs," how is the provision for interest to be taken care of when the rule does not prescribe the amount of interest or the length of time for which interest shall be paid?

Answer: Rules 364 and 368, both in­clusive, should be considered together. The condition of the supersedeas bond is that appellant will perform the judgment, sentence or decree of the appellate court "and pay all such damages as said court may award against him." The intent is that, pending the appeal, the supersedeas bond shall always be in an amount and with sufficient sureties to enable the ap­pellee to collect the judgment against the appellant and his sureties if it is affirmed. The bond should, therefore, be “in a sum at least the amount of the judgment" plus an estimated amount of interest, which will probably accrue during the appeal at the rate prescribed in the judgment, plus the estimated amount of the costs. Rules 365 and 366 prescribe an adequate remedy to the appellee if the bond in the first instance is not adequate or if pending the appeal it becomes insufficient either as to amount or as to the sureties.

5 Tex. B.J. 96 (1942) reprinted in 8 Tex. B.J. 9 (1945).

(No. 18) Question: Under Rule 364, subdivision (a), providing that appellant desiring to suspend the execution of a judgment may do so by giving a bond "in a sum at least the amount of the judgment, interest and costs," how is the provision for interest to be taken care of when the rule does not prescribe the amount of interest or the length of time for which interest shall be paid?

Answer: Rules 364 and 368, both in­clusive, should be considered together. The condition of the supersedeas bond is that appellant will perform the judgment, sen­tence or decree of the appellate court "and pay all such damages as said court may award against him." The intent is that, pending the appeal, the supersedeas bond shall always be in an amount and with sufficient sureties to enable the appellee to collect the judgment against the appel­lant and his sureties if it is affirmed. The bond should, therefore, be "in a sum at least the amount of the judgment" plus an estimated amount of interest, which will probably accrue during the appeal at the rate prescribed in the judgment, plus the estimated amount of the costs. Rules 365 and 366 prescribe an adequate remedy to the appellee if the bond in the first instance is not adequate, or, if pending the appeal, becomes insufficient either as to amount or as to the sureties.

5 Tex. B.J. 321 (1942) reprinted in 8 Tex. B.J. 21 (1945).

(No. 54) Question: What is the proper procedure to mature the liability of the sureties upon a supersedeas bond given under Subdivi­sion (c) of Rule 364? We understand that this inquiry relates to a case where the defendant gives a supersedeas bond under, Rule 364(c) after a plaintiff recovers a money judgment together with the fore­closure of a lien upon a piece of real estate, and as authorized by the Rule the de­fendant does not give a full supersedeas bond but gives a bond to cover the esti­mated rents and hire of the real estate pending the appeal plus court costs.

Answer: It is the opinion of subcom­mittee that the only change in the previous procedure intended to be effected by sub­division (c) of Rule 364 was to authorize a partial supersedeas which would super­sede only that part of the judgment re­lating to recovery of or foreclosure upon a specific piece of real property.

The liability of the sureties upon such a supersedeas bond, when the judgment is affirmed, is the same as it formerly was upon a bond given under the statute (Arti­cle2270), except that the amount of the bond is not double the value of the judg­ment as formerly required by the statute but is an amount fixed by the trial court "not less than the rents and hire of said real estate" during the pendency of the appeal.

Although the method of fixing the amount of such a partial supersedeas bond is based by the rule upon the rents and hire of the real estate pending the appeal, nevertheless the condition of the bond is the same as set out in subdivision (a) of the rule, namely that the appellant shall prosecute his appeal with effect, etc. If said condition is not complied with, then the liability of the sureties is determined as under any other supersedeas bond, in such cases, not to exceed, of course, the amount fixed by the bond.

There are a number of court decisions relating to the liability of sureties under supersedeas bonds in such cases and re­lating to the method of "determining the extent of damages sustained by the ap­pellee because of the appeal (see annota­tions in Vernon's Statutes under Article 2270), but those are matters relating to rules of law and decisions which are not peculiar to the new rules and which do not involve the interpretation of any par­ticular phraseology of the rules.

Therefore this subcommittee feels that it is not within its province to undertake to give an opinion upon the extent of the liability of the sureties in any particular case or upon the matter of how to proceed in any particular case in order to mature the liability of the sureties. In other words, the subcommittee feels that it should confine its interpretations to gen­eral explanations of the rules, and that the above general construction of the rule is as far as the subcommittee can prop­erly go in answering the question.

5 Tex. B.J. 321 (1942) reprinted in 8 Tex. B.J. 22 (1945).