Wichita Falls, R. & Ft. W. Ry. Co. v. Combs

• Decision Date: 14 April 1926
• Docket Number: (No. 4026.)
• Citation: 283 S.W. 135
• Parties: WICHITA FALLS, R. & FT. W. RY. CO. v. COMBS.
• Court: Texas Supreme Court

283 S.W. 135

WICHITA FALLS, R. & FT. W. RY. CO. v. COMBS.

(No. 4026.)

Supreme Court of Texas.

April 14, 1926.

Action by Leslie Combs against the Wichita Falls, Ranger & Fort Worth Railway Company. Judgment of the Court of Civil Appeals (250 S. W. 714), affirming a judgment for plaintiff, as reduced on entry of remittitur, was affirmed by the Supreme Court (268 S. W. 447), on recommendation of the Commission of Appeals, and the American Surety Company of New York and another, as sureties on defendant's appeal bond, moved to vacate clerk's inadvertent entry of judgment against them for amount recovered and interest, in addition to costs. Judgment corrected, by eliminating judgment against sureties, except for costs, and affirmed as against the railway company only.

Geo. E. Shelly, of Austin, for American Surety Co.

Thompson, Barwise & Wharton, of Fort Worth, and Charles L. Black, of Austin, for Fred L. Wallace. On Motion to Correct Judgment.

GREENWOOD, J.

The district court of Eastland county rendered judgment for $40,000 in favor of defendant in error against plaintiff in error. Plaintiff in error perfected an appeal by giving notice and filing an appeal bond which, after reciting the judgment, provided:

"Now, therefore, we, the Wichita Falls, Ranger & Fort Worth Railway Company, a corporation, as principal, and American Surety Company of New York and F. L. Wallace, as sureties, acknowledge ourselves bound to pay to the plaintiff, Leslie Combs, and the clerk of the district court of Eastland county, Tex., jointly and severally, the sum of one thousand dollars ($1,000), conditioned that the said Wichita Falls, Ranger & Fort Worth Railway Company, appellant, shall prosecute its appeal with effect, and shall pay all the costs which have accrued in the court below and which may accrue in the Court of Civil Appeals and the Supreme Court and any other court."

This bond was signed by the principal and sureties, and was approved by the district clerk, who fixed the probable amount of the costs in all courts at $250. The Court of Civil Appeals at El Paso ordered the judgment of the district court reversed, unless defendant in error should enter a remittitur of $15,000. The remittitur was entered; and on April 5, 1923, the Court of Civil Appeals affirmed the judgment of the court below as reduced to $25,000, with interest from December 8, 1921, at the rate of 6 per cent. per annum. 250 S. W. 714. The judgment entered on its minutes by the honorable Court of Civil Appeals decreed that defendant in error recover of plaintiff in error, as principal, and of the American Surety Company of New York and Fred Wallace, as sureties, the aforesaid sum of $25,000, and interest, and all costs in the district court and in the Court of Civil Appeals.

Plaintiff in error alone applied to the Supreme Court for a writ of error, making no complaint of the form of the judgment which had been entered in the Court of Civil Appeals. The writ of error was granted, and the case was referred to Section A of the Commission of Appeals. The Commission recommended that the judgment of the Court of Civil Appeals be affirmed. On that recommendation the Supreme Court, on January 28, 1925, ordered that the judgment of the Court of Civil Appeals be affirmed. 268 S. W. 447 In entering the judgment of the Supreme Court on the minutes, the clerk followed the judgment shown in the transcript from the Court of Civil Appeals, as is often done when no change is made in the judgment of the Court of Civil Appeals. The result was that the judgment of the Supreme Court as rendered awarded defendant in error a recovery of $25,000, and interest, and costs from the sureties on the cost appeal bond in the penal sum of only $1,000. The sureties on the appeal bond have filed a motion to have adjudged a nullity, and to vacate, the inadvertent entry on this court's minutes of this recovery by defendant in error against them.

The motion is resisted by defendant in error on the ground that the judgments of the Court of Civil Appeals and of the Supreme Court were correct — or at most only erroneous, but not void — under chapter 23 of the Acts of the 37th Legislature, pp. 54 and 55 (Vernon's Ann. Civ. St. Supp. 1922, arts. 1551, 1627).

By this act, passed in 1921, it is provided that in ordering an affirmance, or in rendering such decree or judgment as should have been rendered by the court below, the Court of Civil Appeals shall at the same time render judgment against the appellant or plaintiff in error and the sureties on his appeal bond, a copy of which shall accompany the record, making such disposition of costs as the court may order, and, at discretion, awarding certain damages not to exceed 10 per cent. of the amount of the original judgment. The act also provides that the Supreme Court, in ordering an affirmance, or in rendering such decree or judgment as should have been rendered by the Court of Civil Appeals, shall at the same time render judgment against the plaintiff in error and the sureties on his appeal or supersedeas bond for the performance of its judgment or decree, making such disposition of costs as the court may order.

We are unable to assent to the proposition that it was intended by this act to make sureties on appeal bonds in double the amount of estimated costs liable to have judgments entered against them, by the Court of Civil Appeals or by the Supreme Court, for anything other than costs. To interpret the act as contended for by defendant in error is to entirely bar the right to have judgments of trial courts reviewed by appeal or writ of error, unless the losing party is able to find qualified sureties willing to become responsible, not only for costs, but for performance of the appellate court's judgment, or unless he is unable to pay or secure the costs. The result of such an interpretation of the statutes is obviously to defeat the state's cherished policy from her earliest history. Therefore such interpretation is wholly inadmissible, unless the language of the legislative act admits of no other reasonable construction.

One of the acts of the First Legislature of Texas provided for an appeal under bond "in double the amount of the debt or damages or the value of the slaves or other personal property adjudged, conditioned for the prosecution of the appeal with effect and performing the judgment, sentence, or decree of the Supreme Court, in case the decision of said court shall be against the appellant."

The same act made provision for an appeal by a party unable to give a supersedeas bond, or where the judgment was for land, by giving security for no more than the costs and damages of the appeal. Sections 136, 138, Act May 13, 1846; 2 Gammel's Laws of Texas, p. 1705; articles 549, 551, Oldham & White's Digest of Laws of Texas. It was determined in Doss v. Griswold, 1 Tex. 101, and Janes v. Langham, 29 Tex. 417, that the full extent of the obligation of the sureties on the appeal bond other than a supersedeas, under the act of 1846, was for costs and 10 per cent. damages for delay, while the supersedeas appeal bond was designed to bind the sureties for the performance of all that was required of the appellant by the Supreme Court's judgment.

In 1858 a law was passed authorizing the removal of any cause from the district court to the Supreme Court, by writ of error, on plaintiff in error giving bond with sufficient security "for all the cost which may accrue in the Supreme Court, and which may have accrued in the district court." Article 557, Oldham & White's Digest of Laws of Texas.

Other requirements, not relevant to the present inquiry, being complied with, the Revised Statutes of 1879 authorized an appeal or writ of error to be perfected in either of three modes:

One was by filing a bond with good and sufficient sureties, in a sum at least double the probable amount of the costs of the suit in both the appellate court and the court below, as fixed by the clerk, conditioned that the appellant or plaintiff in error "shall prosecute his appeal or writ of error with effect, and shall pay all the costs which may accrue in the appellate court." Revised Statutes of 1879, art. 1400. A party unable to pay or secure costs was authorized to prosecute an appeal without bond, on making proof of his inability. Revised Statutes of 1879, art. 1401.

An appeal or writ of error perfected by means of cost bond or affidavit did not suspend enforcement of the judgment to be reviewed. Revised Statutes of 1879, art. 1403.

The third mode of perfecting the appeal or writ of error was to file a supersedeas bond, with sureties, in a sum at least double the amount of the judgment, interest, and costs, conditioned that the appellant or plaintiff in error "shall prosecute his appeal or writ of error with effect, and in case the judgment of the appellate court shall be against him, that he shall perform its judgment, sentence or decree, and pay all such damages as said court may award against him."

The supersedeas bond stayed the execution of the judgment until the appeal or writ of error was determined. Revised Statutes of 1879, arts. 1404, 1406. The act of 1892 (Acts 22d Leg. 1st Called Sess. c. 17) conformed these articles of the 1879 Revised Statutes to the 1891 amended judiciary article of the Constitution, by substituting "Court of Civil Appeals and Supreme Court" for the term "appellate court." Articles 2097, 2098, 2100, 2101, 2103, Complete Texas Statutes, or Vernon's Sayles' Ann. Civ. St. 1914. Unless the judgment of the inferior court was set aside or reduced, the act of 1892 directed the Court of Civil Appeals or the Supreme Court to render judgment against the appellant or plaintiff in error and the sureties on his appeal or writ of error bond, and the Court of Civil Appeals was empowered, at discretion, to add damages for delay not to exceed 10 per cent. of the amount of the original judgment. Articles 1627, 1551, Complete Texas...