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Rule 364. Supersedeas Bond or Deposit (1984)

TEXT

(a) May Suspend Execution. Unless otherwise provided by law or these rules, an appellant may suspend the execution of the judgment by filing a good and sufficient bond to be approved by the clerk, or making the deposit provided by Rule 14c, payable to the appellee in the amount provided below, conditioned that the appellant shall prosecute his appeal or writ of error with effect and, in case the judgment of the Supreme Court or Court of 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) Money Judgment. When the judgment awards recovery of a sum of money, the amount of the bond or deposit shall be at least the amount of the judgment, interest, and costs.

(c) Land or Property. When the judgment is for the recovery of land or other property, the bond or deposit 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 during the appeal, and the bond or deposit shall be in the amount estimated or fixed by the trial court.

(d) Foreclosure on Real Estate. When the judgment is for the recovery of or foreclosure upon real estate, the appellant may supersede the judgment insofar as it decrees the recovery of or foreclosure against said specific real estate by filing a supersedeas bond or making a deposit in the 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 or deposit 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) Foreclosure on Personal Property. When the judgment is for the recovery of or foreclosure upon specific personal property, the appellant may supersede the judgment insofar as it decrees the recovery of or foreclosure against said specific personal property or by filing a supersedeas bond or making a deposit 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 the supersedeas bond or deposit is less than the amount of the money judgment with interest and cost, then the appellee shall be allowed to have his execution against any other property of appellant.

(f) Other Judgment. When the judgment is for other than money or property or foreclosure, the bond or deposit shall be in such amount to be fixed by the said court below as will secure the plaintiff in judgment in any loss or damage occasioned by the delay on appeal, but the court may decline to permit the judgment to be suspended on filing by the plaintiff of a bond or deposit to be fixed by the court in such an amount as will secure the defendant in any loss or damage occasioned by any relief granted if it is determined on final disposition that such relief was improper.

(g) Child Custody. When the judgment is one involving the care or custody of a child, the appeal, with or without a supersedeas bond or deposit 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 rendering the judgment. However, the appellate court, upon a proper showing, may permit the judgment to be superseded in that respect also.

(h) For State or Subdivision. When the judgment is in favor of the State, a municipality, a State agency, or a subdivision of the State in its governmental capacity, and is such that the judgment holder has no pecuniary interest in it and no monetary damages can be shown, the bond or deposit shall be allowed and its amount fixed within the discretion of the trial court, and the liability of the appellant shall be for the face amount if the appeal is not prosecuted with effect. The discretion of the trial court in fixing the amount shall be subject to review. Provided, that under equitable circumstances and for good cause shown by affidavit or otherwise, the court rendering judgment on the bond or deposit may allow recovery for less than its full face amount.

(i) Certificate of Deposit. If the appellant makes a deposit in lieu of a bond, the clerk's certificate that the deposit has been made shall be sufficient evidence thereof.

Amended by order of Dec. 5, 1983, eff. April 1, 1984: The provision authorizing the court to decline to permit the judgment to be suspended has been added to subdivision (f), and references to the deposit have been made to conform to Rule 14c. The sections have been redesignated and textual changes are made.

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).