Lloyds Casualty Insurer v. Farrar , 141 Tex. 497 ( 1943 )

I do not believe that Lloyds Casualty Insurer is liable on the bond here sued on, for the simple reason that the purpose supersedeas bond was never accepted as such.

The purported bond was executed for the purpose of superseding a judgment theretofore recovered by Mowery and others against Southern Underwriters, but when it was tendered to the Clerk of the Court of Civil Appeals for that purpose said Clerk refused to accept and approve the bond. A motion for leave to file a petition for mandamus to require the Clerk to approve the bond was then filed in the Court of Civil Appeals. Mowery and the others in whose favor the judgment ran resisted the motion, and as a result the motion was denied. In other words, the Court of Civil Appeals, at the request of Mowery and others, refused to order the Clerk to accept and approve the bond. Certainly there was no acceptance of the proposed contract up to that time. Thereafter Southern Underwriters, not Lloyds Casualty Insurer, filed in the Supreme Court a motion for leave to file a petition for mandamus to require the Clerk of the Court of Civil Appeals to approve the bond. This Court allowed the petition to be filed and entered a stay order, pending a hearing of the case. It should be noted here, however, that Lloyds Casualty Insurer did not file this petition, and further that the bond here sued on was not given to this Court nor filed and approved by the Clerk of this Court as a condition precedent to the issuance of the stay order. Later the main case was disposed of by the Court of Civil Appeals, and the Supreme Court then dismissed, as moot, the petition for mandamus to require the Clerk of the Court of Civil Appeals to approve the bond. It is plain, therefore, that no one ever accepted the bond in question as a supersedeas bond to prevent the issuance of execution on Mowery's judgment.

A supersedeas bond is but a contract, and is to be construed in many respects like other contracts. Every bond, in order that it may become a binding obligation, must not only be executed by the obligors and delivered, but must be accepted as such. 9 C.J. 16; 6 C.J. 1012; 11 C.J.S. 406, 408; 17 C.J.S. 414; 3 Tex. Jur. p. 384; sec. 274; Dillard v. First National Bank of Canyon,143 S.W. 682, par. 4; Cox v. Gordon et al, 241 S.W. 286 (writ refused); State v. Gaver 115 Md. 250, 80 A. 891, par. 2; Empire State Surety Co. v. Schillinger Bros., 167 Ill. App. 632. See also Parmer County v. Smith, 47 S.W.2d 883; Benson v. Ashford,189 S.W. 1093.

The acceptance of a statutory bond is usually evidenced by the approval and filing by the clerk of the court. In fact, our statutes, Articles 2270 and 2272, which were in force at the time here in question, contemplated such, for they provided that a supersedeas bond should be "approved by the clerk."

The uncontradicted evidence shows that the Clerk not only refused to approve the bond and that the Court of Civil Appeals refused to make him approve it, but that Mowery, the beneficiary in the bond, appeared and objected to the acceptance and approval of the bond. Afterwards Southern Underwriters filed in this Court a petition for mandamus to compel the Clerk to approve the bond. But this did not constitute an acceptance of the bond for several reasons. In the first place, the petition was not filed by Lloyds Casualty Insurer, the defendant herein, and, in the second place, this Court never acted on that petition and never ordered the Clerk to approve the bond. It cannot be said that the stay order issued by this Court was issued on the filing of the bond here under consideration, for said bond was not given as a condition for the issuance of such stay order and was never accepted by this Court for that purpose.

There is not a single case cited in the main opinion, and none has been found by this writer, in which a surety has been held liable on a bond that had never been accepted as such. In the case of Lloyds Casualty Insurer v. McGee, by this Court, and cited in the main opinion, the bond had been filed and approved by the Clerk, and there was no question as to its acceptance as such. The same is true of all the other cases cited in the main opinion.

I cannot subscribe to the doctrine that a party is liable on an obligation that was never accepted in some way by the obligee or some one authorized to accept same for him.

Opinion delivered July 21, 1943.