Harrison v. Barngrover

• Decision Date: 19 May 1938
• Docket Number: No. 3296.,3296.
• Citation: 118 S.W.2d 415
• Parties: HARRISON et al. v. BARNGROVER et al.
• Court: Texas Court of Appeals

118 S.W.2d 415

HARRISON et al. v. BARNGROVER et al.

No. 3296.

Court of Civil Appeals of Texas. Beaumont.

May 19, 1938.

Rehearing Denied June 15, 1938.

Appeal from District Court, Jefferson County; R. L. Murray, Judge.

Action on a supersedeas bond by George A. Barngrover and others against D. J. Harrison and others, wherein a cross-action was filed. From a judgment for plaintiffs, defendants appeal.

Reformed and, as reformed, affirmed.

Chas. C. McRae, of Houston, E. E. Easterling, of Beaumont, Llewellyn & Dougharty, of Liberty, and W. D. Gordon, of Beaumont, for appellants.

E. B. Pickett, Jr., of Liberty, and Orgain, Carroll & Bell, and D. E. O'Fiel, all of Beaumont, for appellees.

WALKER, Chief Justice.

After the entry of our order in Harrison v. Barngrover, 72 S.W.2d 967, dissolving the temporary writ of injunction, appellants presented their application to the judge who tried the case, after the adjournment of the term of court at which the case was tried, asking him to fix the amount of a supersedeas bond to be executed by them. The judge fixed the amount of the bond at $10,000. Appellants executed the bond and filed it with the clerk of the district court of Liberty County; the bond contained the following material provisions: "Whereas, said judgment further provided that the sum of $52,391.25 in the Registry of the Court and deposited with the Clerk should be paid over and delivered by the Clerk of the Court to the defendants therein named, specifying the amounts respectively so allotted and ordered to be paid over to them;" and third, that the judgment had been appealed from; and fourth, "Whereas, it is the desire of the plaintiffs in said cause to supersede the execution of said judgment by a writ of supersedeas, and the Honorable Thomas B. Coe, Judge of said District Court, has fixed the sum of Ten Thousand ($10,000.00) Dollars as the amount of bond required of said plaintiffs (Appellants), to supersede the said order and judgment of the court authorizing the payment of said sums of money to the defendants (Appellees).

"Now, Therefore, Know all men by these presents: That we, (naming the defendants) acknowledge ourselves bound to pay unto Mason Barngrover, (naming the plaintiffs) the sum of Ten Thousand ($10,000.00) Dollars, well and truly to be made. Conditioned, however, that the said Appellants shall prosecute their appeal with effect, and in case the judgment of the Supreme Court, or the Court of Civil Appeals shall be against them, they shall perform its judgment, sentence or decree, and pay all such damages as said court may award against them; and pay to the appellees the value of the rent or hire of such property in any suit which may be brought therefor."

Appellants made their application to the trial court with the intention of filing a supersedeas bond; the court made his order to effectuate that intent; and in good faith appellants filed their bond as a supersedeas bond; when the bond was filed, the appellees in Harrison v. Barngrover treated it as a supersedeas bond, and made no demand upon the clerk of the district court of Liberty County for the payment of their pro rata part of the fund deposited in court by the Humble Oil and Refining Company. On submission of Harrison v. Barngrover on its merits, this court affirmed the judgment of the lower court, but made no order on appellants' supersedeas bond. Harrison v. Barngrover, Tex.Civ.App., 72 S.W.2d 971, 972. After the writ of error was denied by the Supreme Court, and appellants' application for writ of certiorari refused by the Supreme Court of the United States, 294 U.S. 731, 55 S.Ct. 639, 79 L.Ed. 1260, our mandate was issued to the district court of Liberty County on the 12th day of April, 1935. After the return of the mandate appellees were paid the money awarded them by the judgment.

On the 6th day of March, 1936, the appellees in Harrison v. Barngrover, except those who by agreement of the parties had been paid the money awarded them in that case, instituted this suit in the district court of Jefferson County against the appellants in that case, the makers of the supersedeas bond, and their sureties, praying for judgment as for the detention of money from the entry of the original judgment until appellees were paid the money on the return of the mandate from this court, together with interest on their damages. On trial to the court without a jury judgment was entered in favor of appellees, George A. Barngrover, in his individual capacity, George Barngrover Trust Estate, acting through George A. Barngrover, A. J. Hartel, Jr., and David E. O'Fiel, Trustees, and Mrs. W. P. Wallace, a feme sole, the Minor Oil Company, a corporation organized under the laws of the State of Texas, Will E. Orgain, J. L. Younger, F. J. McNellie, R. R. Hobson, J. M. Hutchinson, D. P. Perkins and T. F. Cruse, against appellants, W. D. Gordon, D. J. Harrison and Chas. C. McRae, as principals, and Marrs McLean and August E. Borsum, as sureties, for the sum of $4,214.47 together with interest at six (6%) per cent. per annum from the 24th day of May, 1937, the date of the judgment; and in favor of appellee, Mrs. Tina Allen Frugia Johnson, against appellants for the sum of $284.76, with interest from date of judgment at six (6%) per cent per annum. Appellant Harrison was given judgment against appellant Gordon on his cross action for the sum of $4,499.23, or such part of that sum as he might be required to pay to satisfy the judgment awarded appellees.

From the judgment against them appellants have duly prosecuted their appeal to this court on the following points:

(1) The order made by the trial judge after the adjournment of the term of court, fixing the principal amount of the supersedeas bond was void. This contention is denied by Cisco Independent School District v. Dudley, Tex.Civ.App., 53 S.W. 2d 639.

(2) The bond was not good as a statutory bond because not in double the amount of the money deposited in court by Humble Oil and Refining Company. Appellants invoke Art. 2270, Vernon's Ann. Civ.St., "An appellant or plaintiff in error, desiring to suspend the execution of the judgment may do so by giving a good and sufficient bond to be approved by the clerk, payable to appellee or defendant in error, in a sum at least double the amount of the judgment, interest and costs, conditioned that such appellant or plaintiff in error shall prosecute his appeal or writ of error with effect; and in case the judgment of the Supreme Court or the Court of Civil Appeals shall be against him, he shall perform its judgment, sentence or decree, and pay all such damages as said court may award against him", not Art. 2270, but Art. 2271, "Where the judgment is for the recovery of land or other property, the bond shall be further conditioned that the appellant or plaintiff in error shall, in case the judgment is affirmed, pay to the appellee or defendant in error the value of the rent or hire of such property in any suit which may be brought therefor", regulates the amount of a supersedeas bond on the facts of this case. We had this very point before us in our decision on the temporary writ of injunction in Harrison v. Barngrover, supra. We there held that the amount of the bond was to be fixed by the trial court; we said, accepting as sound appellants' proposition as advanced on that appeal (72 S.W.2d page 970):

"We agree with appellants that, they being the unsuccessful parties in the suit, and the judgment against them not being one for a certain sum of money to be made out of their property by execution, nor for property in their possession, they were not required, in order to suspend the execution of the judgment pending their appeal, to give a supersedeas bond in double the sum of money sued for, for the execution of such bond, in our opinion, would not make appellants liable for the safe-keeping of the funds involved pending the appeal, nor the guarantors of same for the benefit of appellees, but, as in the case of Waters-Pierce Oil Co. v. State, 107 Tex. 1, 106 S. W. 326, 330, and Yett v. Cook, 115 Tex. 175, 268 S.W. 715, 721, 281 S.W. 843, and Ætna Club v. Jackson (Tex.Civ.App.) 187 S.W. 971, and Lawler v. Wray (Tex.Civ. App.) 8 S.W.2d 524, where such are the facts, and the appellant desires to suspend a judgment pending appeal, he has the right to and is required to have the court fix the amount of the supersedeas bond and duly execute same."

What we have said on this point is in due recognition of appellants' proposition that the trial court has power to fix the amount of a supersedeas bond only in the event the amount is not fixed by Art. 2270. Hill v. Halliburton, 32 Tex.Civ.App. 21, 73 S.W. 21; Houtchens v. Mercer, 119 Tex. 244, 27 S.W.2d 795.

(3) Appellants can have no relief under their proposition that no demand was made by appellees upon the district court of Liberty County after appellants filed their supersedeas bond. The bond was good as a supersedeas bond, and after its execution the clerk was without authority to pay the money to appellees. The judgment had been superseded, and a demand would have been an idle gesture.

(4) Appellants are wrong in their contention that appellees cannot maintain an independent suit on the bond. In Jeffus v. Mullins, Tex.Civ.App., 78 S.W.2d 1023, the court said (page 1024):

"On affirmance by the appellate court of a judgment, from which the appeal was perfected by the filing of a supersedeas bond, the prevailing party is entitled to proceed by motion in the appellate court to cause judgment to be entered against the sureties on the bond or he may bring a common-law action against the sureties on the bond. Article 1857, Revised Civil Statutes of Texas (1925); Holland Texas Hypotheek Bank v. Broocks (Tex.Civ. App.) 297 S.W. 1070; Blair v. Sanborn, 82 Tex. 686, 18 S.W. 159; Trent v. Rhomberg, 66 Tex. 249, 18 S.W. 510; Burck v. Burroughs, 64 Tex. 445."

(5) Appellants contend that the...