Mudd v. Mudd

Citation665 S.W.2d 128
Decision Date02 November 1983
Docket NumberNo. 04-83-00335-CV,04-83-00335-CV
PartiesThomas Othon MUDD, III, Appellant, v. Angela Maria MUDD, Appellee.
CourtCourt of Appeals of Texas

Emilio Davila, Jr., Laredo, Thomas H. Crofts, Jr., Groce, Locke & Hebdon, San Antonio, for appellant.

Pat Maloney, Sr., Law Offices of Pat Maloney, San Antonio, for appellee.

Before CANTU, TIJERINA and DIAL, JJ.

OPINION

CANTU, Justice.

Appellant and appellee were granted a divorce and judgment was entered on May 26, 1983. An appeal was timely perfected by the deposit of cash in lieu of bond.

The trial court originally entered an order setting a lump sum supersedeas bond in the amount of $4,000,000.00. Not being able to obtain a bond in that amount, appellant filed a motion requesting the trial court to set the amount of a bond sufficient to supersede only a part of the judgment. This motion was denied. Appellant then filed in this Court a motion for leave to file a petition for writ of mandamus, seeking a writ to compel the trial court to set a partial bond.

While this motion was pending, and before any action was taken by this Court, the trial court entered an order setting a partial supersedeas bond in the amount of $1,200,000.00, to supersede two parts of the judgment, to-wit: awards of (1) a recovery of money totaling $153,750.00 and (2) possession of "all Persian rugs" and "all oil paintings" in appellant's possession, which the trial court found to have a total maximum value of $481,000.00.

The money portion of the judgment and the maximum value of the personal property, as found by the trial court, total $634,750.00. Accrued court costs total $7,563.78.

Appellant filed a motion asking this Court to order that the amount of the partial supersedeas bond set by the district court at $1,200,000.00 be reduced to approximately $642,313.78 plus interest. On October 5, 1983, we denied the motion with the notation that there had been no showing or allegation that the bond could not be made by the appellant. Appellant subsequently filed a motion for rehearing of this cause in which he alleged that he has attempted to make the bond but has been unable to procure a bond in the amount set by the trial court.

We grant the motion for rehearing and hold that the partial supersedeas bond as set by the trial court is excessive and unreasonable. Hence the order of the trial court is set aside, and in lieu, we hereby set the amount at $700,122.02, to be conditioned as required by law, on the giving of which by the appellant, and on its being approved and filed by the clerk of the court below, a writ of supersedeas will issue pending the appeal.

Appellee asserts that we lack authority to review the action of the trial court in fixing the amount of the supersedeas bond. She relies on the case of Harrington v. Young Mens Christian Association of Houston and Harris County, 440 S.W.2d 354, 359 (Tex.Civ.App.--Houston [1st Dist.] 1969), rev'd on other grounds, 452 S.W.2d 423 (Tex.1970), which held that the appellate court was without authority to review the action of the trial court in fixing the amount of the supersedeas bond. We disagree with the holding of the Houston Court.

TEX.R.CIV.P. 364(a) and (d) provides:

(a) An appellant 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 in a sum at least the amount of the judgment, interest and costs, conditioned that the appellant 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.

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(d) Where the judgment is for the recovery of or foreclosure upon specific personal property, the appellant may supersede the judgment in so far as it...

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6 cases
  • In re Karlseng
    • United States
    • Court of Appeals of Texas
    • February 12, 2014
    ...488, 493 (Tex. App.—Texarkana 1998, pet. denied); Weber v. Walker, 591 S.W.2d 559, 563 (Tex. Civ. App.—Dallas 1979, no writ); Mudd v. Mudd, 665 S.W.2d 128, 130 (Tex. App.—San Antonio 1983, no writ); see generally Elaine A. Carlson, Mandatory Supersedeas BondRequirements-A Denial of Due Proc......
  • Lovelace v. Sabine Consol., Inc.
    • United States
    • Court of Appeals of Texas
    • June 11, 1987
    ...the rule is to enable the appellee to collect the judgment against the appellant and his sureties if the judgment is affirmed. Mudd v. Mudd, 665 S.W.2d 128, 130 (Tex.App.--San Antonio 1983, no writ). The thrust of appellant's argument seems to be that he is constitutionally guaranteed the r......
  • Man-Gas Transmission Co. v. Osborne Oil Co., MAN-GAS
    • United States
    • Court of Appeals of Texas
    • April 4, 1985
    ...as in this case, we acquire plenary exclusive jurisdiction. Ammex Warehouse Co. v. Archer, 381 S.W.2d 478, 482 (Tex.1964); Mudd v. Mudd, 665 S.W.2d 128, 130 (Tex.App.--San Antonio 1983, mand. overr.). Accordingly, we have authority to review the action of the trial court in fixing the amoun......
  • Faulknerusa, Lp v. Alaron Supply Co., Inc.
    • United States
    • Court of Appeals of Texas
    • October 21, 2009
    ...judgment is affirmed. Lovelace v. Sabine Consol., Inc., 733 S.W.2d 648, 657 (Tex. App.Houston [14th Dist.] 1987, writ denied); Mudd v. Mudd, 665 S.W.2d 128, 130 (Tex.App.-San Antonio 1983, no writ). This Court may review the trial court's ruling in assessing the amount and type of security ......
  • Request a trial to view additional results
1 books & journal articles
  • CHAPTER 8 Staying Execution and Superseding the Judgment
    • United States
    • Full Court Press Practitioner's Guide to Civil Appeals in Texas
    • Invalid date
    ...amended Rule 24.2(b)).[61] See, e.g., Isern v. Ninth Court of Appeals, 925 S.W.2d 604, 606 (Tex. 1996) (orig. proceeding); Mudd v. Mudd, 665 S.W.2d 128, 129 (Tex. App.—San Antonio 1983, no writ) (holding insufficiency of personal assets to post a bond supported reduction in the bond amount)......

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