Woods Exploration & Producing Co., Inc. v. Arkla Equipment Co.
| Decision Date | 23 July 1975 |
| Docket Number | No. B--5160,B--5160 |
| Citation | 528 S.W.2d 568 |
| Parties | WOODS EXPLORATION AND PRODUCING COMPANY, INC., et al., Petitioners, v. ARKLA EQUIPMENT COMPANY, Respondent. |
| Court | Texas Supreme Court |
Morris L. Pepper, Houston, for petitioners.
Butler, Binion, Rice, Cook & Knapp, Maynard A. Powell, Houston, for respondent.
On the principal question to be decided here, we hold that the clerk's certificate showing that a deposit has been made in lieu of an appeal bond may, when warranted by the facts, be amended to show that the deposit was made for the benefit of parties not named in the original certificate.
The suit was brought by Arkla Equipment Company against Woods Exploration and Producing Company, Inc. (Exploration), Eastern Pipeline Company (Eastern), and Stanley C. Woods to recover on two promissory notes executed by Exploration and Eastern and partially guaranteed by Stanley C. Woods. The trial court rendered summary judgment in favor of plaintiff against Exploration and Eastern for the unpaid principal, interest and attorney's fees on the notes and against Stanley C. Woods in accordance with his partial guaranty. The Court of Civil Appeals concluded: (1) that neither Exploration nor Eastern had appealed, (2) that there is a question of fact with respect to attorney's fees, and (3) that there is no merit in the other attacks made on the summary judgment. The claim for attorney's fees against Stanley C. Woods was severed, and as to that part of the case the judgment of the trial court was reversed and the cause was remanded for trial. As to the remainder of the case, the judgment of the trial court was affirmed. 525 S.W.2d 50.
All three defendants gave timely notice of appeal. Some three weeks after the judgment was rendered, counsel for all defendants deposited with the district clerk in lieu of an appeal bond a cashier's check for $250.00 furnished by Stanley C. Woods. Neither the check nor the letter of transmittal identified the parties making the deposit, but the check evidently indicated that it had been purchased by Stanley C. Woods. In accordance with the provisions of Rule 354, 1 the clerk issued and filed among the papers in the case his certificate showing that the deposit had been made. The certificate, which was included in the transcript, states that the deposit was made by Stanley C. Woods and contains no reference to either of the other defendants. With the record in this condition, the Court of Civil Appeals properly concluded that only Stanley C. Woods had perfected an appeal.
On motion for rehearing in the Court of Civil Appeals, defendants filed the affidavit of Stanley C. Woods stating that the deposit was made for the benefit, and to perfect the appeal, of all three defendants. The affidavit further states that Stanley C. Woods is the President of both Exploration and Eastern, but nothing was filed by the two corporate defendants in either the trial court or the Court of Civil Appeals to confirm that the deposit was made to perfect their appeal and to cover costs incurred by them. The motion for rehearing was overruled.
Defendants have now filed with the clerk of our Court, in response to a suggestion made during oral argument here, a certified copy of an amended certificate of the district clerk showing that a cash deposit of $250.00 has been made by Exploration, Eastern and Stanley C. Woods. The amended certificate is dated July 11, 1975, more than a year after rendition of the summary judgment.
Rule 430, T.R.C.P., provides that when there is a defect of substance or form in an appeal or writ of error bond, then on motion to dismiss for such defect the appellate court may allow the same to be amended by filing a new bond. This rule is liberally construed and applied to carry out its intended purpose. If the appellant files any sort of instrument that is intended to be a bond and to invoke appellate jurisdiction, the instrument may, on timely request, be amended to cure any defect of either form or substance. See United Ass'n of Journeymen, etc. v. Borden, 160 Tex. 203, 328 S.W.2d 739; Grogan Mfg. Co. v. Lane, 140 Tex. 507, 169 S.W.2d 141. A bond filed for the purpose of perfecting an appeal may be amended even though it is not signed by the party appealing and does not show his name as principal. Owen v. Brown, Tex.Sup., 447 S.W.2d 883.
Although the Rules of Civil...
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