Berry v. Curtis
| Decision Date | 03 March 1950 |
| Docket Number | No. 15127,15127 |
| Citation | 227 S.W.2d 396 |
| Parties | BERRY et al. v. CURTIS. |
| Court | Texas Court of Appeals |
Frank H. King, of Terrell, for appellants.
Saunders & Thurmond, and J. Byron Saunders, all of Tyler, for appellee.
Appellee recovered judgment against appellants in the trial court for the sum of $32,513.14 and foreclosure of lien on certain described real estate. Appellants filed a bond conditioned as a supersedeas bond in the principal sum of $2,000. Appellee has filed a motion alleging that said bond is insufficient in amount, and praying that an order be entered in this court requiring an additional bond.
If the bond was intended to have the effect of suspending any execution on the judgment, it should have been in a sum at least the amount of the judgment, interest and costs. Texas Rules of Civil Procedure, rule 364(a). If it was intended to have the effect only of suspending foreclosure against the specific real estate described in the judgment, it should have been in an amount fixed by the trial court, not less than the rents and hire of said real estate. Rule 364(c). The transcript does not show any order of the trial court fixing the amount of bond, made under the provision of the Rule last cited.
Authority is vested in this court under Rules 365-366 to require additional bond, and, if the additional bond be not filed, to issue an order to the trial court directing or permitting issuance of execution.
Appellants have filed a reply to the motion, contending that any defects in the supersedeas bond, of either form or substance, were waived by failure of appellee to present objections to the bond by motion filed within thirty days after the transcript was filed in the Court of Civil Appeals, citing Rules 404 and 430, and the following decisions: Williams v. Wiley, 96 Tex. 148, 71 S.W. 12; Pillow v. McLean, 126 Tex. 349, 88 S.W.2d 702; Roberts v. Stoneham, Tex.Civ.App., 31 S.W.2d 856; Neely v Tarrant County, 132 Tex. 357, 124 S.W.2d 101; Keys v. Alamo City Baseball Co., Tex.Civ.App., 142 S.W.2d 694.
Rule 404 provides: 'All motions relating to informalities in the manner of bringing a case into court shall be filed and entered by the clerk on the motion docket within thirty days after the filing of the transcript in the Court of Civil Appeals, otherwise the objection shall be considered as waived, if it can be waived by the party.'
Rule 430 provides: 'When there is a defect of substance or form in any appeal or writ of error bond, then on motion to dismiss the same for such defect, the appellate court may allow the same to be amended by filing in such appellate court a new bond, on such terms as the court may prescribe.'
The cited cases declare the rule thus set out in Neely v. Tarrant County, supra (132 Tex. 357, 124 S.W.2d 105), 'In view of this statute it is held that defects either of substance or of form in an appeal bond are not jurisdictional and are waived by failure to present objection to the bond by motion within thirty days after the transcript is filed.'
The cited cases involved appeal bonds and in...
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Fisher Const. Co. v. Riggs
...that appellee has waived the right to object to the sufficiency of the appeal bond, but agree with the decision in Berry v. Curtis, 154 Tex.Civ.R. 579, 227 S.W.2d 396, no writ history, holding that Rule 404 does not apply to a supersedeas bond in view of the language of Rules 364 to 368. In......
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Schrader v. Garcia
...on other grounds, 125 Tex. 458, 84 S.W.2d 693); Phelan v. Settle, 431 S.W.2d 376 (Tex.Civ.App.--Amarillo 1968, no writ history); Berry v. Curtis, 227 S.W.2d 396 (Tex.Civ.App .--Fort Worth 1950, n.w.h.); Dillard v. Wilson, 137 S.W. 152 (Tex.Civ .App.1911, n.w.h.). See also Padgett v. Mutual ......
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Delhi Gas Pipeline Corp. v. Hassell, 12-87-0056-CV
...by rule 47(f). Hence, the question raised by the record is one of the sufficiency of the bond rather than its validity. Berry v. Curtis, 227 S.W.2d 396, 397 (Tex.Civ.App.--Fort Worth 1950, no mand.). Rule 49(a) 8 authorizes this court to determine the initial and continuing sufficiency of t......