Southern Surety Co. v. Texas Oil Clearing House , 1924 Tex. App. LEXIS 824 ( 1924 )

On Motion for Rehearing. Appellant earnestly insists that we discuss more specifically its seventh proposition, contained in its brief, which reads as follows:

"If the judgment in the original cause No. 1841, Texas Oil Clearing House v. Central Stock Exchange, was valid, it was appealed from on a supersedeas bond, duly executed, approved and filed in said cause, and the plaintiff in said garnishment could not enforce his judgment in said garnishment cause against the surety on the replevin bond filed therein until he had exhausted his remedy against the sureties upon said supersedeas bond, and the court therefore erred in not so holding, and in not permitting plaintiff in this cause to prove the execution, approval, and filing of said supersedeas bond; same being assignment of error No. 6."

In the first place, the record shows no bill of exception to the refusal of the trial court to permit appellant to prove the execution, approval, and filing of the supersedeas bond referred to in the proposition. In the briefs filed, reference is made to the statement of facts, in which appears the testimony of Lester Jones, to the effect that he and Mr. Gardner signed "a supersedeas bond" as sureties for D. W. Young in cause No. 6781, entitled Texas Oil Clearing House, Plaintiff, v. Central Stock Exchange and W. D. Young, Defendants, and that the witness released to Young $4,500 in money and $1,500 in bonds, which the latter had deposited in bank to indemnify Jones and Gardner against loss by reason of having signed the supersedeas bond as sureties, and that said release was induced by the following certificate from the clerk of the district court of Wichita county, Tex.:

"No. 6781. Texas Oil Clearing House, Plaintiff, v. Central Stock Exchange and D. W. Young, Defendants. Messrs. W. W. Gardner and Lester Jones — Gentlemen: I state in the above cause the bond in said cause here above mentioned, on which you were sureties, has been lost, and no appeal was perfected, by reason that no final judgment was rendered. And I here now state to you, in my official capacity as clerk of said court, that I will and do here withdraw my approval of said bond and declare the same canceled, and will destroy the same as soon as found. A. F. Kerr, Clerk of the District Court, Wichita County, Texas."

There is other testimony in the record to the effect that a transcript for appeal from the judgment in the original cause of Texas Oil Clearing House v. Central Stock Exchange was sent to the clerk of this court to be filed, but the clerk refused to file it, for the reason that it showed no final judgment rendered. That was done within 90 days after the cause was tried. The proof further shows that, after the transcript was returned by the clerk of this court, counsel took no further steps to prosecute an appeal or writ of error, and that no transcript was ever filed in this court. The statement of facts contains no copy of supersedeas bond, nor any proof of its terms or the sum for which it was given.

Accordingly, we cannot say that a valid supersedeas or appeal bond was ever filed; and, in the absence of a bill of exception we cannot say that appellant offered to prove the execution of such a bond, and that the court refused to admit such proof.

Furthermore, even if a statutory appeal bond had been filed, as contended, we think it clear that the appeal was thereafter abandoned.

Burrow-Jones-Dyer Shoe Co. v. Gerlach Mercantile Co. (Tex.Civ.App.)200 S.W. 250, and numerous other decisions, are cited by appellant, holding that no final judgment can be rendered against the garnishee until a valid final judgment has been rendered against the defendant in the original suit. In those cases judgments against the garnishees, rendered in violation of that rule, were reversed; but all of those decisions were upon direct appeal, and not in cases like the present, in which the judgment against the surety on the garnishee's replevy bond is attacked in an independent suit for injunctive relief, on the ground that the judgment complained of was void.

The motion for rehearing is overruled.