Weatherford v. National Life Ins. Co. , 78 S.W.2d 992 ( 1935 )

LOONEY, Justice.

The court below rendered judgment in favor of National Life Insurance Company (appellee), establishing its debt in the sum of $80,745.20, adjudged the same to be a valid lien and charge against certain real property, situated in Kaufman county, Tex., foreclosed the lien, as against W. Weatherford, Tom B. Owens (appellants), and others ¡brought in as defendants, on allegations that they owned or claimed some interest in the lands, and authorized the issuance of all necessary process for the sale of the lands to satisfy the judgment, etc. However, the judgment' expressly provides that plaintiff was not entitled to personal judgment for the debt against either of the defendants.

Weatherford and Owens duly perfected an appeal, by cost bond, and the case is now pending in this court for review. After the appeal was perfected, plaintiff below (appellee) caused an order of sale to be issued on the judgment, placed same in the 'hands of the sheriff of Kaufman county for execution, who duly advertised the lands to sell on the first Tuesday in January (January 1), 1935. Desiring to suspend the execution of the judgment pending appeal, appellants applied to Honorable Claude M. McCallum, trial judge, for an order fixing the amount of the super-sedeas bond, who, after hearing evidence on the application, concluded that the case was ruled by the provisions of article 2270, R. S., thereupon fixed the amount of the bond at the sum of $161,590.40, double the amount of plaintiff’s debt, as established by the judgment.

In holding that the provisions of article 2270, R. S., were applicable to and ruled the case, the trial judge necessarily declined, or failed to exercise its discretion, to set the bond in an amount that would indemnify ap-pellee against damages that might be sustained by reason of the appeal. As no judgment for the recovery of money was rendered against either defendant, simply a judgment establishing the debt and foreclosing the lien as to them, it is our opinion that article 2270, R. S., is not applicable to the case, and'that, on the application of appellants, it became the duty of the trial court to set the supersedeas bond in an amount sufficient only to indemnify appellee in the event it suffers damage by reason of the appeal and suspension of judgment. On December 29,1934, appellants filed in this court an application setting up the facts, praying that the writ of mandamus issue, directing the trial judge to set aside its former order, and, in lieu thereof, enter an order fixing the amount of the supersedeas bond only at a sum that will fairly and reasonably indemnify appellee against damages that may be suffered by reason of the appeal and suspension of judgment.

In the recent case of Ferguson v. Ferguson (Tex. Civ. App.) 69 S.W.(2d) 592, 594, 595, the Eastland court, through Judge Hickman, used the following language in point: “It is now the settled law of this state that article 2270 does not except from its operation any class of judgments. Waters-Pierce Oil Co. v. State, 107 Tex. 1, 106 S. W. 326; Lawler v. Wray (Tex. Civ. App.) 8 S.W.(2d) 524; Houtchens v. Mercer, 119 Tex. 431, 29 S.W.(2d) 1031, 69 A. L. R. 1103. Since the appeal was not from a money judgment, that statute does not prescribe the amount of the super-sedeas bond. In such cases it is necessary for the court to fix the amount thereof. Hill v. Halliburton, 32 Tex. Civ. App. 21, 73 S. W. 21; Houtchens v. Mercer, supra. In the last-cited case, a mandamus was issued directing the district judge to fix the amount of a su-persedeas bond, a thing which would not have been done if the fixing thereof was within the discretion of the relator or the clerk. The only way to stay the execution of a judgment, other than one for money, is by filing a bond approved by the clerk in the penal sum fixed by the court. There is absent from this petition the essential allegation that the trial court had fixed the amount of the bond.” A case directly in point is that of Continental Supply Co. v. Forrest E. Gilmore Co. (Tex. Civ. App.) 48 S.W.(2d) 376, 377, by the Amarillo court. Speaking for the court, Chief Justice Hall said: “The only money judgments which were rendered in the trial court were against the Forrest E. Gilmore Company of Texas. No judgment for money was rendered against any of the appellants, the only issue as to them being the right to foreclose their liens and the question of priority with reference thereto. R. S. art. 2270, has no application .to a judgment of this kind. In cases of this character, the bond must be fixed by the trial judge in an amount sufficient only to indemnify the appellee or appellees in the event they are damaged by the appeal. It would he grossly inequitable to require the appellants in this case, the aggregate of whose claims is less than $50,000, to file a super-sedeas bond in double the amount of the judgment. The amount of such bond would necessarily exceed $1,100,000.” Also, see Houtchens v. Mercer, 119 Tex. 431, 29 S.W.(2d) 1031, 69 A. L. R. 1103.

The only case brought to our attention that seemingly conflicts with the rule pronounced • by the 'Amarillo court, supra, is that of Crumley v. McKinney, 9 S. W. 157, by the Supreme Court. However, we think, on careful consideration, it will be found that the conflict is more apparent than real, as the language used by Judge Stayton in Crumley v. McKinney, seemingly in conflict with the rule announced by the Amarillo court, was on a point not necessary to the decision of the question then under consideration, therefore, must be considered as mere dictum.

Since the decision in Crumley v. McKinney, our courts have repeatedly held, in cases like the one under consideration, that the only liability assumed by obligors on a supersedeas bond is to indemnify the judgment plaintiff for any damages sustained by reason of the appeal [Adoue v. Wettermark, 28 Tex. Civ. App. 593, 68 S. W. 553, 555; Garrett v. Katz (Tex. Civ. App.) 27 S.W.(2d) 373; McConnell v. Libecap (Tex. Civ. App.) 38 S.W.(2d) 408]; this being true, there exists no reason for a bond in double the amount of the judgment debt, as required by article 2270, R. S.; and to exact a bond in such an amount would, as stated by the Amarillo court, “be grossly inequitable,” and, furthermore, would seriously interfere with, in fact often would defeat, the right of a defendant to suspend the judgment pending appeal.

We, therefore, grant the application for the writ which will issue, commanding Honorable Claude M. McCallum, judge of the 101st judicial district of Texas, to set aside his order formerly entered; fixing the amount of the supersedeas bond, under article 2270, R. S., at double the amount of the judgment debt, and, in lieu thereof, to set the bond at such amount as will adequately indemnify appellee for any and all damages that may be suffered by reason of the appeal and suspension of the judgment in the meantime.

The writ of mandamus, as prayed for, will issue.

BOND, J., dissents.