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Rule 368. Judgment Stayed (1984)
TEXT
Upon the filing and approval of a proper supersedeas bond or the making of a deposit in compliance with Rule 364 or Rule 365, execution of the judgment, or so much thereof as has been superseded, shall be suspended, and if execution has been issued, the clerk shall forthwith issue a writ of supersedeas.
Amended by order of Dec. 5, 1983, eff. April 1, 1984: The reference to the deposit has been added, and minor textual changes have been made.
| Prior Amendments | Future Amendments |
|---|---|
| Oct. 29, 1940, eff. Sept. 1, 1941 | Repealed by order of April 10, 1986, eff. Sept. 1, 1986. |
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).