Pinkston v. Victoria Bank & Trust Co.

• Decision Date: 24 March 1948
• Docket Number: No. 15684.,15684.
• Citation: 210 S.W.2d 612
• Parties: PINKSTON et al. v. VICTORIA BANK & TRUST CO.
• Court: Texas Court of Appeals

Page 612

210 S.W.2d 612

PINKSTON et al. v. VICTORIA BANK & TRUST CO.

No. 15684.

Court of Civil Appeals of Texas. San Antonio.

March 24, 1948.

Rehearing Denied April 21, 1948.

Appeal from District Court, Victoria County; Honorable Howard P. Green, Judge.

Proceeding between Jack Pinkston and others and the Victoria Bank & Trust Company. Judgment for the trust company, and Pinkston and others appeal. On appellants' motion to extend the time to file the record.

Motion overruled.

Jack Pinkston, of Dallas, and W. L. Edwards, of Victoria, for appellants.

Crain & Vanderberge, of Victoria, for appellee.

MURRAY, Justice.

This motion was filed in this Court March 10, 1948, asking for an extension of time within which to file the record herein. This motion was granted by this Court on that date, but such action was on March 15, 1948, set aside and the motion is now before us for consideration.

A transcript and statement of facts in this case was tendered to the Clerk of this Court on March 16, 1948, for filing, which was only one day late. An examination of the transcript discloses that what purports to be an appeal bond has never been approved by the Clerk of the trial court, neither has he fixed the probable amount of the costs on appeal.

The Clerk made the following certificate on the bond:

"I do hereby certify that the foregoing appeal bond was received by me on the 8th day of March, 1948. It was filed but not approved, due to the fact that I was not satisfied at that time as to the sufficiency of the amount of the bond, nor was I satisfied with the personal security feature. This 13th day of March, 1948."

It is clear from this certificate that the Clerk did not intend to approve the bond. He so notified appellant, Jack Pinkston. On March 8, 1948, the Clerk of the District Court wrote to Jack Pinkston telling him, among other things, that he had received the purported appeal bond and that it had been his experience that such bonds are not worth the paper they are written on. He further stated he was going to demand a bonding company bond until further developments. On March 11, 1948, Jack Pinkston wrote to Hon. J. M. Stokes, Clerk of the District Court, acknowledging receipt of the Clerk's letter of March 8, 1948, and urging the Clerk to file and approve the bond, assuring him that the sureties were sufficient and informing him that he did not have a legal right to demand a bond with corporate sureties.

On March 12, 1948, Jack Pinkston wrote the Clerk, among other things, as follows:

"Therefore, since sufficient time does not now remain within which for me to have a corporate surety bond approved and filed with you, within the time limit prescribed under the said Rule 385, and since the district clerk of Dallas County, Texas, has certified the bond which was tendered to you for filing in the above cause several days ago, I shall request first that you approve the said bond and forward the transcript together with such bond to the Court of Civil Appeals in accordance with my letter to you of yesterday; or, on the other hand, if you still refuse to approve the personal surety bond so tendered to you by me, I then request that you show the said bond as having been filed in your office on the date the same was received by you, that you endorse on said bond the fact that you are refusing to approve the same because it was not executed by a corporate surety, and that you then incorporate said bond into the transcript and forward said transcript, together with the statement of facts, to the Court of Civil Appeals for their disposal."

On March 13, 1948, the clerk wrote the following to appellants:

"This is to advise...