Haney Elec. Co. v. Hurst

• Decision Date: 25 November 1980
• Docket Number: No. 24421,24421
• Citation: 608 S.W.2d 355
• Parties: HANEY ELECTRIC COMPANY and Marion Willard Stewart, Appellants, v. Thomas M. HURST and Cheryl Hurst and Howard Lane, Appellees.
• Court: Texas Court of Appeals

Page 355

608 S.W.2d 355

HANEY ELECTRIC COMPANY and Marion Willard Stewart, Appellants, v. Thomas M. HURST and Cheryl Hurst and Howard Lane, Appellees.

No. 24421.

Court of Civil Appeals of Texas, Dallas.

Nov. 25, 1980.

James S. Maxwell, Richard G. Thomas, Maxwell, Bennett, Thomas, Carlton & Maxwell, Dallas, for appellants.

Morton A. Rudberg, Carter, Jones, Magee, Rudberg, Moss & Mayes, Dallas, Charles H. Clark, Tyler, for appellees.

Before GUITTARD, C. J., and ROBERTSON and CARVER, JJ.

ROBERTSON, Justice.

This is a motion to require appellants, Haney Electric Company and Marion Willard Stewart, to file additional supersedeas bonds. Appellees obtained a money judgment for $189,000 against appellants who have perfected their appeal and filed a supersedeas bond for $100,000. Appellees assert that this bond is insufficient. We agree.

Rule 364(a) of the Texas Rules of Civil Procedure provides that an appellant has the right to suspend the execution of a judgment by giving a good and sufficient bond to be approved by the clerk of the district court in a sum "at least the amount of the judgment, interest and costs." Appellants assert that rule 368 authorizes a partial supersedeas bond, and they argue that an order requiring additional supersedeas bonds will confront their insurance carrier, St. Paul Mercury Insurance Company, with an unnecessary "Hobson's Choice." ¹ Because the judgment is in excess of $100,000, St. Paul cannot furnish the entire supersedeas bond without becoming obligated for the entire judgment, thereby exceeding its policy limits. See Mea v. Mea, 464 S.W.2d 201 (Tex.Civ.App.-Tyler 1971, no writ). If St. Paul provides no supersedeas bond, appellees can proceed directly against St. Paul and force it to pay out the $100,000 even though the appeal is pending.

Appellants assert that there are no Texas cases construing rules 364 and 368 in this context. In support of their position, appellants rely on Merritt v. J. A. Stafford Company, 68 Cal.2d 619, 440 P.2d 927, 68 Cal.Rptr. 447 (1968) holding that where there is a judgment in excess of the policy limits, the insurer and the insured have separate and independent interests; the insurer may furnish a bond for the portion of the judgment within the policy limits, and the bond will be given effect pending appeal to stay execution on that portion of the judgment. In Merritt the insurer, having sought declaratory relief, was a party to the proceeding. If St. Paul were a party to this suit and sought to make a bond only for the amount for which it could be held liable under the terms of its policy, there might be good ground for permitting it to do so, but St. Paul is not a party in the proceeding before us, and we do not pass on that question. See Rudolph v. Cassidy, 225 Ark. 951, 286 S.W.2d 489 (1956).

The provisions of rule 364(a) require that a money judgment be superseded in a sum "at least the amount of the judgment, interest and costs." Rule 364(c), however, provides for partial supersedeas in cases involving foreclosure of real estate and rule 364(d) provides for a partial supersedeas against foreclosure of liens on personal property. Rule 368 of the Texas Rules of Civil Procedure provides:

Upon the filing of the proper...