Grand Leader, Inc. v. Monnig Dry Goods Co.

McCLENDON, C. J. Defendant in error has filed a motion to dismiss the writ of error, on the ground that the name of C. M. Bender, one of three sureties upon the writ of error bond, was forged. The record shows that on July 13, 1922, defendant in error recovered judgment against plaintiff in error, in the district court of Tarrant county, for $2,867, besides attorney’s fees, interest, and costs; that on November 25, 1922, plaintiff in error sued out a writ of error to the Court of Civil Appeals for the Second Supreme Judicial District, and filed a supersedeas writ of error bond in the penal sum of $6,500, with I. A. Wolfe, M. Faverman, and C. M. Bender as sureties, which bond was approved by the clerk on the date of its filing. The record was seasonably filed in the court of Civil Appeals for the Second Supreme Judicial District; the cause was later transferred to this court by order of the Supreme Court. The motion to dismiss, which was filed January 24, 1924, and is verified by counsel for defendant in error, makes the following allegations of £aet regarding execution of the bond by Bender: “On or abo4ut the 20th day of December, A. D. 1923, your appellant, Monnig Dry Goods Company, had information and was advised that the name of C. M. Bender, one of the sureties on said supersedeas bond, had been forged thereon by one M. Faverman, another of the sureties on said supersedeas bond; - that said C. M. Bender was the only solvent surety on said supersedeas bond; ⅞ * ⅜ that on or about the 21st day of January, A. D. 1924, in a proceedings held before the district court of Tarrant county, Tex., in the Sixty-Seventh judicial .district before Hon. Ben M. Terrell, judge of said court, the said O. M. Bender testified, in open court, that the name of the said O. M. Bender had been placed on said supersedeas bond as 'aforesaid without the knowledge or consent or authority of the said C. M. Bender; that contempt proceedings are now pending in the district court of Tarrant county, Tex., for the Sixty-Seventh judicial district against the said M. Faverman and the said I. A. Wolfe, sureties on said supersedeas bond so filed as aforesaid.” Aside from the foregoing statements in the motion verified by counsel, no affidavit or other evidence has been filed or tendered in support of the motion. Plaintiff in error has filed an answer to the motion, but, as this is not verified, it need not be further noted. The Courts of Civil Appeals, “have power, upon affidavit or otherwise as by the courts may be thought proper, to ascertain such matters of fact as may be necessary to the proper exercise of their jurisdiction.” Revised Statutes, article . 1593; Austin v. Nalle, 85 Tex. 520, 22 S. W. 668, 960; Gruger v. McCracken, 87 Tex. 584, 30 S. W. 537; Padgitt v. Young County, 111 Tex. 98, 229 S. W. 459; Maury v. Turner (Tex. Com. App.) 244 S. W. 809; Blalock v. Slocomb (Tex. Com. App.) 245 S. W. 648; Rushing v. Bank (Tex. Civ. App.) 160 S. W. 337; Smith v. Buffalo Oil Co., 99 Tex. 77, 87 S. W. 659; Mercantile Co. v. Wathen, 93 Tex. 622, 57 S. W. 946; Claborne v. Ry. Co. 21 Tex. Civ. App. 648, 53 S. W. 837, 57 S. W. 336; Birdsong v. Allen (Tex. Civ. App.) 165 S. W. 46; Webster v. Ry. (Tex. Civ. App.) 184 S. W. 295; Fruit Co. v. Fruit Co. (Tex. Civ. App.) 198 S. W. 594; Ry. v. Beckham (Tex. Civ. App.) 202 S. W. 991; Phillips v. Phillips (Tex. Civ. App.) 203 S. W. 77; Hedrick v. Matthews (Tex. Civ. App.) 216 S. W. 424. In the Cruger Case the court say: “We have but little doubt that such courts could lawfully have exercised such power without the aid of .that provision. Harris v. Hop-son, 5 Tex. 529. It is a power, it seems to us, which is necessarily inherent in the court, and one which has been frequently exercised without the aid of express enactment, either consti-. tutional or statutory.” The validity of an appeal or writ of error bond is essential to a determination of the jurisdiction of the Court of Civil Appeals in *683 two respects. In the first place, a valid bond is necessary in order to give tbe court jurisdiction of tbe appeal or writ of error. In tbe second place, tbe Court of .Civil Appeals is given by statute tbe power to render judgment summarily against tbe sureties upon tbe bond; and to exercise that jurisdiction tbe court must of necessity pass upon tbe binding effect of tbe bond on tbe sureties. R. S. art. 1627; Burck v. Burroughs, 64 Tex. 446; Cruger v. McCracken, above. In the Cruger Case, after a judgment bad been rendered against tbe principal and sureties upon tbe bond by tbe Court of Civil Appeals, and writ of error denied, one of tbe sureties filed, in tbe Court of Civil Appeals, a motion to vacate tbe judgment as to her, on tbe ground that she was a married woman when she executed tbe bond, a fact which did not appear of record. It was held that tbe Court of Civil Appeals was vested with tbe power to ascertain hy “affidavits or other evidence” tbe truth of tbe allegation of cover-ture asserted in tbe motion. In that case the motion was supported by affidavits. Tbe Supreme Court declined to pass upon tbe sufficiency of tbe affidavits, and remanded tbe proceeding to tbe Court of Civil Appeals for tbe purpose of determining tbe facts in such manner as that court might deem proper, without suggestion as to tbe procedure. In Rushing v. Bank, tbe appeal bond was claimed to be invalid, because tbe name of one of tbe sureties bad been erased and after-wards signed by some unauthorized party, and also because tbe sureties bad been induced by fraud or misrepresentation to sign tbe bond. Tbe court, while overruling tbe motion to dismiss on its merits, concluded that it bad the power to ascertain tbe facts asserted in tbe motion for the purpose of determining tbe validity of tbe bond. We have no doubt of tbe power of this court to ascertain whether or not an appeal or writ of error bond has been forged in order to determine tbe jurisdiction of this court to bear .the appeal or writ of error, or render judgment against tbe sureties upon the bond, and to adopt such method as tbe court may think proper or advisable to ascertain tbe facts touching such issue. We are clear in tbe view, however, that tbe motion in tbe present case is not sufficient to warrant us in bolding that tbe bond was forged. So far as tbe record is concerned tbe bond appears to be in every respect regular, and has tbe approval of tbe clerk of tbe trial court. Tbe surety whose name is alleged to have been forged has made no claim of that character in this court; nor is there any affidavit made by him presented in connection with tbe motion. Tbe allegations of the motion itself, verified by counsel, do not amount to an unequivocal assertion that the bond was forged, but merely that appellant “was advised” that it was forged, and that Bender bad so testified in a contempt proceeding in tbe trial court. By whom this proceeding was instituted, who were tbe parties to it, and what may have been tbe result thereof are not stated; and the record in that proceeding is not before us. Tbe effect of tbe motion is nothing more than an assertion that Bender bad testified that bis name was signed to tbe bond without bis knowledge, consent, or authority. Before we could sustain tbe motion we would necessarily have to determine judicially that Bender’s name was not signed to tbe bond by himself or by bis authority. To do so there must be legally competent evidence of sufficient weight to establish that fact. No affidavit or evidence of any one claiming to have personal knowledge of whether Bender ^igned or authorized bis signature to tbe bond is presented in this court. Bender, a party to tbe proceeding, and the one most vitally interested in tbe matter, has never sought in this court to be relieved of bis liability as surety; nor in any manner to question tbe validity of the bond. Tbe record in tbe proceeding in which be is alleged to have testified is not before us. Further than the bare assertion that be testified therein that bis name was signed to tbe bond without bis authority, we know nothing of tbe evidence in that proceeding, and have no information as to what was done in it. We hardly think there can be serious question but that we would not be warranted in judicially determining that Bender was not bound by tbe bond upon the meagre showing in tbe motion. Tbe motion, in our judgment, is clearly not sufficient to put in issue the validity of tbe bond; and, in view of the fact that the question sought to be raised is one of fundamental jurisdiction, we think tbe proper order to be entered is to dismiss the motion. It is so ordered. Motion dismissed.