Brown v. Owen, 16977

• Court: Texas Civil Court of Appeals
• Writing for the Court: MASSEY
• Citation: Brown v. Owen, 436 S.W.2d 373 (Tex. Ct. App. 1968)
• Decision Date: 27 December 1968
• Docket Number: No. 16977,16977
• Parties: Marvin A. BROWN, d/b/a Brown Service Company, Appellant, v. Joe B. OWEN et al., Appellees. . Fort Worth

Page 373

436 S.W.2d 373

Marvin A. BROWN, d/b/a Brown Service Company, Appellant, v. Joe B. OWEN et al., Appellees.

No. 16977.

Court of Civil Appeals of Texas Fort Worth.

Dec. 27, 1968.

Rehearing Denied Jan. 24, 1969.

Stone, Tilley, Parker, Snakard, Law & Brown, and James B. Barlow, Fort Worth, for appellant.

Shannon, Gracey, Wright, Ratliff & Miller, and Robert D. Wilkes, Fort Worth, for appellee Morris B. Parker.

Pepper & Markward, and R. C. Pepper, Fort Worth, for appellee Joe B. Owen.

OPINION

MASSEY, Chief Justice.

On the Motion to Dismiss

In connection with this appeal by a defendant from a judgment for plaintiffs for damages at common law, the victorious plaintiffs have filed a motion attacking the costs and supersedeas bond filed and approved by the clerk of the trial court in the amount of $6,382.00. The bond is not attacked on the premise of its insufficiency as to amount, but upon the theory that it is not the kind or character of bond designed to supply or sufficient to support the appeal because it is not signed by the defendant, either in person or by agent or attorney, and the result is a want of appellate jurisdiction.

The language of the bond follows that of ordinary usage and custom relative to number and style of the cause in the trial court, describes the judgment from which the appeal is desired to be taken, and names the party in whose favor the judgment of the trial court was rendered, and names the party against whom it was rendered. Defendant Marvin A. Brown was the party against whom the judgment was rendered. In the language of the bond it was stated that the said defendant, Marvin A. Brown, desired to appeal and also to suspend execution of the judgment. Thereafter the language of the bond read: 'NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, that we, AMERICAN MOTORISTS INSURANCE COMPANY, as principal, and LUMBERMENS MUTUAL CASUALTY COMPANY, as surety, acknowledge ourselves bound to pay to * * * CONDITIONED THAT the said Marvin A. Brown shall prosecute his appeal with effect, pay all costs * * * and in case judgment of the Supreme Court or Court of Civil Appeals shall be against him, he shall perform its judgment, sentence, or decree, and pay all damages as said court may award against him.' The bond was executed by the Lumbermens Mutual Casualty Company as surety, and by American Motorists Insurance Company as principal. Nowhere on the bond was there any execution by the defendant Brown or by anyone whose capacity to sign for him was expressed.

Despite the attack made by the motion to dismiss, the defendant never at any time prior to submission, nor on the day of submission, tendered an amended bond by way of a supplemental transcript. In his reply to the motion to dismiss the defendant included what he called an 'Alternate Motion for Leave to Substitute Amended Bond'. He pointed out the fact that Texas Rules of Civil Procedure, rule 430, 'Amendment: New Appeal Bond', authorizes 'the amendment of any sort of instrument which can be said to be a bond and which was filed for the purpose of taking an appeal.' United Ass'n of Journeyment, etc. v. Borden, 160 Tex. 203, 328 S.W.2d 739 (Tex.Sup., 1959). The effect of what the defendant said was that if and in the event this court should decide as insufficient the bond in the transcript he moved for leave to substitute as the bond in the case one which he proposed to tender, such other to be in a form where the name of Marvin A. Brown would be added as a principal obligor on the bond on file with the clerk of the trial court or on a bond which would be identical thereto except for a change which would add Brown as a principal obligor.

We determine the question by holding as a matter of law that the bond in the transcript is sufficient to support the appeal. We make the determination by bearing in mind the object and purpose and obligations undertaken in affording security to the obligees named by such a bond, and the state of the law as declared in situations of similarity. We do not reach the question of whether the 'respondent' in relation to the matter of the motion to dismiss the appeal could be allowed to amend the bond under the proposed procedure.

It follows from United Ass'n of Journeymen, Etc. v. Borden, supra, that jurisdiction of the appeal was conferred on this court. In other words there would be no question of the efficacy of the bond to confer jurisdiction, whether or not we might conclude that it would be proper to declare it insufficient to support the continued entertainment of the appeal.

The purpose of the bond as applied to a court clerk charged with responsibility as to costs is to secure the trial court and the appellate courts in relation to costs,--and, in the event of a supersedeas and as to supply compensation for delay of the enforcement of a decreed judicial remedy, to secure the party who has prevailed and obtained a judgment in the trial court pending a final determination of the appeal. The concern of such parties, i.e ., the clerk and he who has obtained a judgment, is that they be actually adequately protected; that they will be assured of costs and decreed remedies, if the judgment is upheld by the appellate courts. The general rule is that even as applied to a supersedeas bond which is invalid as such the sureties are liable thereon when the bond accomplishes the purpose for which it was intended by procuring for the principal obligor a stay of execution. Lloyds Casualty Insurer v. Farrar, 141 Tex. 497, 174 S.W.2d 302 (1943).

In Purcell v. Metropolitan Cas. Ins. Co. of New York, Tex.Civ.App., 260 S.W.2d 134 (Fort Worth Civ.App., 1953, no writ hist.) this court became committed to the holding that an appeal bond supports the appeal even when the signature of the appellant is not that of a competent principal if it has been executed by competent sureties; and that such bond is necessarily to be considered as filed either by or for the appellant as principal. In such case the appellant was a minor who had signed the bond. In the instant case, by affidavits which are not attacked as insufficient to accomplish their intended purpose, the defendant Brown has shown (or it is shown for him) that American Motorists Insurance Company, under and by virtue of and because of a contract of insurance with Brown, would be the ultimate obligor as applied to responsibility and duty to pay the judgment rendered by the trial court. Any insufficiency of security because Brown did not execute the bond himself, in person, is not a premise for the attack made. Hence we are not concerned with any need to require Brown bind himself as an obligor in order to afford adequate security. It is to be presumed, under the circumstances, that there is no such need.

The plaintiffs have pointed out two cases by the Dallas Court of Appeals where non-signatory appellants had appeals Dismissed as to them because their signatures did not appear on appeal bonds, or were treated as 'appellants in name only' for that reason. See Henslee v. State, 375 S.W.2d 474 (Dallas Civ.App., 1963, ref. n.r.e.) and Kittrell v. State, 382 S.W.2d 273 (Dallas Civ.App., 1964, ref. n.r.e.). We believe the material distinguishing characteristic of these from the instant case is that here there was only a single person who could have perfected the appeal to which the bond related, while there were more than one in each of the Dallas cases. Even after the subject parties were treated as having abandoned or forfeited their right to appeal there remained in those cases a party who could be treated as a proper appellant.

The motion to dismiss the appeal is overruled.

On the Merits

The defective condition of an instrumentality which operates to cause an accident, created at a prior time by one person when he was 'in exclusive control' thereof (of the factors around which the creation was probably centered) persisting at and after such 'exclusive control' passes into the hands of another--is not the negligence of such other, but would continue to be negligence amounting to proximate cause...