Dillard v. First Nat. Bank of Canyon,

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| Tex. App. | Dec 22, 1911

Lead Opinion

GRAHAM, C. J.

This cause is before us on a motion to hold the supersedeas appeal bond filed in the trial court on December 23, 1910, void for irregularities connected with its execution; the motion having been filed by the sureties on said bond and joined in by appellee, and submitted to this court at the time of the submission of the main cause. The motion is supported by the affidavits of the several sureties, which in our judgment shows grounds sufficient to require that we hold the bond void, especially as there are no controverting affidavits on file among the papers in the cause now before us.

[1] The record shows that another supersedeas bond was filed in the trial court of December 31, 1910, but as that bond was filed after the lapse of the time required by law for the filing of such bonds, and the record fails to show any order of court au*683thorizing it to be filed and considered as an appeal bond in tbis cause, tbe Court of Civil Appeals of tbe Second District baying beld in tbe case of Dillard v. Wilson, 137 S.W. 152" court="Tex. App." date_filed="1911-04-08" href="https://app.midpage.ai/document/dillard-v-wilson-3920576?utm_source=webapp" opinion_id="3920576">137 S. W. 152, that tbe filing of tbe bond on December 23, 1910, conferred jurisdiction on that court in tbis case, we bold that tbe bond filed on December 31, 1910, was and is invalid as an appeal or supersedeas appeal bond in tbis cause. Acts 1905, p. 224.

Because there bas been no valid and binding appeal bond or supersedeas bond filed in tbis cause within tbe time allowed by law, or under any order of court, tbis cause will be dismissed, unless as is provided in said act of 1905, above referred to, appellant file and cause to be approved in this court a new appeal or supersedeas appeal bond witbin 30 days from tbis date, and pay all costs which have accrued in tbe Court of Civil Appeals for tbe Second District, as well as tbe Seventh District, to date, of approval of such supersedeas appeal bond; and it is so ordered.

Lead Opinion

The record shows that another supersedeas bond was filed in the trial court of December 31, 1910, but as that bond was filed after the lapse of the time required by law for the filing of such bonds, and the record fails to show any order of court *683 authorizing it to be filed and considered as an appeal bond in this cause, the Court of Civil Appeals of the Second District having held in the case of Dillard v. Wilson, 137 S.W. 152" court="Tex. App." date_filed="1911-04-08" href="https://app.midpage.ai/document/dillard-v-wilson-3920576?utm_source=webapp" opinion_id="3920576">137 S.W. 152, that the filing of the bond on December 23, 1910, conferred jurisdiction on that court in this case, we hold that the bond filed on December 31, 1910, was and is invalid as an appeal or supersedeas appeal bond in this cause. Acts 1905, p. 224.

Because there has been no valid and binding appeal bond or supersedeas bond filed in this cause within the time allowed by law, or under any order of court, this cause will be dismissed, unless as is provided in said act of 1905, above referred to, appellant file and cause to be approved in this court a new appeal or supersedeas appeal bond within 30 days from this date, and pay all costs which have accrued in the Court of Civil Appeals for the Second District, as well as the Seventh District, to date, of approval of such supersedeas appeal bond; and it is so ordered.

On Rehearing. This case is before us on a motion for rehearing filed by appellee, in which it is urged, in substance, that this court erred in its former opinion in not holding the bond filed in the court below on December 23, 1910, sufficient as an appeal cost bond; and in not holding the bond filed in the court below on December 31, 1910, sufficient as a supersedeas appeal bond, and in not limiting appellant's right to file a new bond in this court to a supersedeas appeal bond; and also in failing to adjudge all costs of appeal in the court of Civil Appeals for the Second Supreme Judicial District, as well as in this court, against appellant.

A sufficient answer we think to the two grounds first mentioned is that the motion acted on by us in our former opinion prayed that both bonds be declared invalid, and that motion was expressly joined in by the appellee. Besides this, the affidavits attached to said motion show conclusively the invalidity of the bond filed on December 31, 1910, as well as the invalidity of the one filed on December 23, 1910.

While the affidavits attached to the motion show sufficient evidence, if presented in a tribunal having power to reform and then enforce as reformed, to warrant such tribunal in holding said bonds valid as cost bonds only, as we understand the law, however, this court has no such power, and, so far as this court is concerned, said bonds must be either valid as supersedeas appeal bonds, as they purport to be, or invalid for any purpose, so far as the sureties are concerned.

As to the bond filed below on December 31, 1910, we call attention to the fact that the indorsement of the clerk of the trial court thereon expressly shows that, while said paper was filed by him, it was not approved by him as a bond in the case, hence, if said instrument were valid in its execution, it could not serve as a supersedeas appeal bond in this cause, never having been approved as a bond in the cause.

There is an element of justice in appellee's contention that appellant should not at this late date be allowed to have the case passed on in this court on its merits by merely filing in this court an appeal cost bond and not a supersedeas appeal bond, after having delayed appellee in the issuance of an execution on its judgment as a result of having filed the bonds held void, but as the time allowed by this court in its former opinion within which a bond could be filed by appellant and approved in this court has elapsed, and no bond of any character has been filed in this court by appellant, no injury has been done appellee or can now result to appellee because of the matter complained of.

While no mention was made in our former opinion as to costs incident to the attempted appeal in this cause, appellant, having attempted to perfect the appeal, and thus causing all costs incident thereto to accrue, is personally liable therefor.

The motion for rehearing will be in all things overruled. All costs incident to the attempted appeal in this cause incurred in the trial court, in the Court of Civil Appeals for the Second Supreme Judicial District, and in this court, will be taxed against the appellant personally, and the cause will be finally dismissed from this court because an appeal has not been properly perfected hereto; and it is so ordered.

Rehearing

On Rehearing.

This case is before us on a motion for rehearing filed by appellee, in wbicb it is urged, in substance, that tbis court erred in its former opinion in not bolding tbe bond filed in tbe court below on December 23, 1910, sufficient as an appeal cost bond; and in not bolding the bond filed in tbe court below on December 31, 1910, sufficient as a supersedeas appeal bond, and in not limiting appellant’s right to file a new bond in tbis court to a supersedeas appeal bond; and also in failing to adjudge all costs of appeal in the court of Civil Appeals for tbe Second Supreme Judicial District, as well as in this court, against appellant.

[2]' A sufficient answer we think to tbe two grounds first mentioned is that tbe motion acted on by us in our former opinion prayed that both bonds be declared invalid, and that motion was expressly joined in by tbe appellee. Besides this, tbe affidavits attached to said motion show conclusively tbe invalidity of tbe bond filed on December 31, 1910, as well as tbe invalidity of the one filed on December 23, 1910.

[3] While tbe affidavits attached to the motion show sufficient'evidence, if presented in a tribunal having power to reform and then enforce as reformed, to warrant such tribunal in holding said bonds valid as cost bonds only, as we understand tbe law, bow-e'ver, tbis court bas no such power, and, so far as this court is concerned, said bonds must be either valid as supersedeas appeal bonds, as they purport to be, or invalid for any purpose, so far as the sureties are concerned.

[4] As to the bond filed below on December 31, 1910, we call attention to tbe fact that tbe indorsement of tbe clerk of tbe trial court thereon expressly shows that, while said paper was filed by him, it was not approved by him as a bond in tbe case, hence, if said instrument were valid in its execution, it could not serve as a supersedeas appeal bond in this cause, never having been approved as a bond in the cause.

There is an element of justice in appel-lee’s contention that appellant should not at this late date be allowed to have tbe case passed on in tbis court on its merits by merely filing in tbis court an appeal cost bond and not a supersedeas appeal bond, after having delayed appellee in tbe issuance .of an execution on its judgment as a result of having filed tbe bonds held void, but as tbe time allowed by tbis court in its former opinion within which a bond could be filed by appellant and approved in tbis court bas elapsed, and no bond of any character bas been filed in tbis court by appellant, no injury has been done appellee or can now result to appellee because of the matter complained of.

[5] While no mention was made in our former opinion as to costs incident to tbe attempted appeal in tbis cause, appellant, having attempted to perfect the appeal, and thus causing all costs incident thereto to accrue, is personally liable therefor.

Tbe motion for rehearing will be in all things overruled. All costs incident to the attempted appeal in tbis cause incurred in tbe trial court, in the Court of Civil Appeals for the Second Supreme Judicial District, and in this court, will be taxed against the appellant personally, and tbe cause will be finally dismissed from tbis court because an appeal bas not been properly perfected hereto ; and it is so ordered.