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Rule 365. Review of Bond or Deposit (1984)

TEXT

(a) Sufficiency. The sufficiency of a cost or supersedeas bond or deposit or of any other bond or deposit under Rule 364 shall be reviewable by the appellate court for insufficiency of the amount or of the sureties or of the securities deposited, whether arising from initial insufficiency or from any subsequent condition which may arise affecting the sufficiency of the bond or deposit. The court in which the appeal is pending shall, upon motion showing such insufficiency, require an additional bond or deposit to be filed in and approved by the clerk of the trial court, and a certified copy to be filed in the appellate court.

(b) Excessiveness. In like manner, the appellate court may review for excessiveness the amount of the bond or deposit fixed by the trial court and may reduce the amount if found to be excessive.

Amended by order of Dec. 5, 1983, eff. April 1, 1984: Appellate review is extended to insufficiency of a deposit in lieu of bond, and to excessiveness of the amount. The additional bond is to be filed in the trial court with a certified copy in the appellate court.

ADVISORY OPINIONS

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).