State v. Watts, 9595.

• Decision Date: 06 November 1946
• Docket Number: No. 9595.,9595.
• Citation: 197 S.W.2d 197
• Parties: STATE v. WATTS et al.
• Court: Texas Court of Appeals

Page 197

197 S.W.2d 197

STATE v. WATTS et al.

No. 9595.

Court of Civil Appeals of Texas. Austin.

November 6, 1946.

Rehearing Denied November 13, 1946.

Appeal from District Court, Travis County; Chas. O. Betts, Judge.

Action by the State against Walter Watts and others to recover on a supersedeas bond. Judgment for defendants, and State appeals.

Affirmed.

Grover Sellers, Atty. Gen., and Jack Ayer and Ocie Speer, Asst. Attys. Gen., for appellant.

Alto B. Cervin, of Dallas, Irving G. Mulitz and Frank F. Spata, both of Houston, McGown, McGown, Godfrey & Logan, by B. E. Godfrey and Harry L. Logan, Jr., all of Fort Worth, and Looney & Clark, Everett L. Looney, and Charles F. Herring, all of Austin, for appellees.

BAUGH, Justice.

This case grows out of the appeal in Watts v. Mann, Tex.Civ.App., 187 S.W.2d 917. In that case the appellants, thirty in number, who had been permanently enjoined by the trial court from violating what is popularly known as the Loan Shark Act, Vernon's Ann.Civ.St., Art. 4646b, Acts 48 Leg., Ch. 144, and pursuant to an order of the trial court fixing the amount thereof, filed a supersedeas bond in the sum of $2,500, with Standard Accident & Surety Company, as surety. The judgment of the trial court was affirmed by this court and writ of error refused by the Supreme Court. Upon return of the mandate to the trial court in that case, the appellants paid all of the costs. The State thereupon filed this suit against said appellants and the surety on their supersedeas bond to recover the full amount thereof against each of said principals and their surety. Trial was to the court without a jury and judgment rendered that the State take nothing; hence this appeal.

The bond sued upon was conditioned as provided in Rule 364, T.R.C.P., which rule, so far as applicable here, was taken from Art. 2270, R.C.S.1925. There being no money judgment, the amount was fixed by the trial judge, under Sec. (e) of said rule, in an amount sufficient to "secure the plaintiff in judgment in any loss or damage occasioned by the delay on appeal." (Emphasis added.) The State introduced only documentary evidence, including the application for said bond, the bond itself and the mandate from this court on the former appeal. The defendants introduced no evidence.

There is no controversy here as to the right of the appellants in said former suit to supersede that judgment; nor that its enforcement by the State was suspended during the appeal by the execution of said bond. All parties are likewise agreed that the obligation of such bond was one of indemnity only against loss; and not for a penalty. But the crux of the State's contention, variously asserted, is that the $2,500 principal of the bond should be construed as liquidated damages due the State, fixed in advance, for its "loss or damage occasioned" by the suspension of the State's right, during the pendency of said appeal, to enforce its injunction against the appellants in that case. It is the position of the State that in injunction cases, there being no money judgment, and no means whereby specific loss or damage can be proven, unless the amount fixed by the court be treated as liquidated damages, then the State would have no remedy and the statute and rule authorizing supersedeas in such cases would be ineffectual and a nullity. However that may be, the injunction proceeding was one expressly authorized and provided for in the Loan Shark Act. That Act did not make any special provisions for appeals thereunder. Being a civil action, appealable as such, the proceedings on appeal, including supersedeas, would be governed by the same rules applicable to other civil cases. Ex parte Kimbrough, 135 Tex. 624, 146 S.W. 2d 371; State v. Birdette, 139 Tex. 357, 162 S.W.2d 932. Consequently, the construction of supersedeas bonds in such cases must be governed by rules of construction of supersedeas bonds in other civil cases.

We think the terms "loss or damage" referred to in Rule 364, and as used in said bond, refer to monetary or material losses ascertainable by proof, either by the judgment itself, or, where that is not conclusive, by rules relating to proof of damages generally. Such terms do not contemplate injury to the dignity nor sovereignty of the State in the enforcement of its laws; nor to delays in such enforcement occasioned by following the legal processes prescribed for appeals in cases to which the State is a party. Nor is a supersedeas bond, though construed according to canons applicable to the construction of contracts generally, comparable in all respects to a contract entered into voluntarily between individuals, wherein they undertake to estimate in advance actual damages as a result of breach, and state same as such in the contract. The terms of a supersedeas bond are prescribed by law as a part of the right of appeal; and, as has been repeatedly held, is intended only to indemnify the judgment holder against loss from delay. If he suffers no loss, then nothing is due him under the bond. It follows, therefore, that where the judgment holder claims loss or damage in a suit upon said bond, he must not only show that such appellant has failed to prosecute his appeal with success; but also show the extent of his...