Jeffus v. Mullins
| Decision Date | 13 February 1935 |
| Docket Number | No. 9519.,9519. |
| Parties | JEFFUS et al. v. MULLINS. |
| Court | Texas Court of Appeals |
Appeal from District Court, Cameron County; A. M. Kent, Judge.
Action by Linnie E. Mullins against George Jeffus and another. From a judgment for the plaintiff, the defendants appeal.
Reversed and rendered.
Greenwood & Lewis, of Harlingen, for appellants.
Abney & Whitelaw, of Brownsville, for appellee.
This appeal by George Jeffus and G. M. Albertson from a judgment rendered in favor of Linnie E. Mullins, a feme sole, in an action brought by her upon a supersedeas bond executed by them in a former cause, presents a controlling issue as to election of remedies.
The bringing of this action followed a final judgment on appeal in a suit instituted by Linnie E. Mullins against C. A. Tanberg and wife, Thea J. Tanberg. In that case, the plaintiff recovered judgment in the district court against both of the defendants for the amount of a promissory note executed by them, and for the foreclosure of a mechanic's lien on real property. On appeal, the judgment was reversed and rendered in favor of Mrs. Tanberg with respect to the money judgment, and was affirmed in all other respects. Tanberg v. Mullins (Tex. Civ. App.) 46 S.W. (2d) 1119. Shortly thereafter, the Court of Civil Appeals, upon motion of Linnie E. Mullins, entered its judgment, which became final, against Tanberg as well as the sureties on the supersedeas bond, G. W. Albertson and George Jeffers, thus naming them as they were named in the motion and in the transcript. A year and a half later, Linnie E. Mullins filed in the Court of Civil Appeals a motion, which was supported by a certified copy of the supersedeas bond and by affidavits of the clerk and the attorney, showing that the true names of the sureties were G. M. Albertson, instead of G. W. Albertson, and George Jeffus, instead of George Jeffers, and praying the reformation of the judgment so as to show the correct names of those persons. That motion was overruled on October 11, 1933. Then followed this common-law action by Linnie E. Mullins upon the bond, seeking to recover from George Jeffus and G. M. Albertson, as sureties, the deficiency of $1,236.36 upon the original judgment.
The district court held, in effect, that the proceeding in the former case in the Court of Civil Appeals, seeking to amend the judgment of that court so as to allow a recovery against G. W. Albertson and George Jeffers, as sureties, did not constitute an election of remedies to the prejudice of this action upon the bond. The court, accordingly, rendered the judgment, here presented for review, against the sureties by their true names for the amount of the deficiency with accrued interest.
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.
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Harrison v. Barngrover
...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 t......
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Mullins v. Albertson
...in its various phases has been before this Court several times. See Tanberg v. Mullins, Tex.Civ.App., 46 S. W.2d 1119; Jeffus v. Mullins, Tex.Civ. App., 78 S.W.2d 1023. The case at bar is a suit by Linnie E. Mullins against G. M. Albertson and others for the purpose, among other things, of ......
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State v. Watts, 9595.
...holder. He may by motion in the appellate court have such damages assessed, or sue subsequently, as here, on the bond. Jeffus v. Mullins, Tex. Civ.App., 78 S.W.2d 1023. Nor can the appellate court always determine the amount of the damage. And in cases where the supersedeas covers such item......