Wedgeworth v. Pope

BUCK, J. On March 12, 1925, Fannie R, Wedgeworth, joined pro forma toy her husband, V. K. Wedgeworth, filed suit in the seventeenth district court of Tarrant county to set aside a judgment and decree reviving a former judgment rendered against the said Fannie R. Wedgeworth, personally, for the sum of $1,208.95, with interest, which judgment was originally entered against the said Fannie R. Wedgeworth in the trial court on February 16, 1915. The cause was tried before the court without a jury, and on August 31, 1927, the court rendered judgment that plaintiffs take nothing by said proceeding to set aside the judgment of revivor against plaintiff Fannie ⅛. Wedgeworth, and plaintiffs have appealed. Opinion. At the threshold, we conclude that .the appeal should be dismissed, first, because the appeal bond filed by appellant is not made payable to the appellee, or to any one. The bond in part provides: “Now, therefore, we, Fannie R. Wedge-worth and V. K. Wedgeworth, as principals, and —-, as sureties, acknowledge ourselves jointly and severally indebted and bound to pay the sum of three hundred ($300.-00) dollars, a sum at least double the amount of the probable amount of the costs of the suit as estimated by' tibe clerk, conditioned that the said Fannie R. Wedgeworth shall prosecute this appeal with effect, and shall pay all the costs which have accrued in the court below,” etc. Article 2265, Rev. Civ. Statutes, provides that an appeal bond, to be given by appellant or plaintiff in error in the district or county court upon an appeal to a Court of Civil Appeals, shall be “payable to the appel-lee or defendant in error.” The bond must be payable to every party to the judgment whose interest-is adverse to that of appellant, although the judgment may not, in whole or in part, be in favor of such party. Young v. Russell, 60 Tex. 684; Greenwade v. Smith, 57 Tex. 195; Harvey v. Cummings, 62 Tex. 186; Ricker Lee & Co. v. Collins, 81 Tex. 667, 17 S. W. 378; Prusiecki v. Ramzinski (Tex. Civ. App.) 81 S. W. 549; Anderson v. Automobile Finance Co. (Tex. Civ. App.) 260 S. W. 1092. We think, for failure to make the bond payable to appellee, such bond is invalid, and that the appeal should be dismissed. Secondly, it is urged that the bond is insufficient, in that it does not describe the judgment from which the appeal is taken. The judgment described in the bond is the judgment obtained in 1915, in which the First National Bank of Clarendon recovered a judgment personally against Mrs. Wedgeworth for the sum of $1,208.95. The judgment from which this appeal is taken is the judgment rendered on August 31, 1927, denying appellants the right to set aside the judgment of revivor against Mrs. Wedgeworth. The bond describes an entirely different judgment from the one from which relief is sought.' We think the bond is defective in this respect. Thirdly, objection is made to the bond, for the asserted reason that it was not filed in time. The order overruling the motion for rehearing and granting a motion to correct the judgment was made December 22, 1927. The bond shows to have been filed on January 9, 1928, but it was not approved by the clerk until January 27, 1928. If January 9, 1928,-be taken as the date on which the bond was filed, then the bond was not a Valid bond, inasmuch as it had not been appivoved by the clerk at that time. It must be reasonably conceded that January 27, 1928, is the correct date when the clerk approved the'bond, because on that date L. J. Hawkins subscribed and swore to, before a notary public, proof of his competency as a bondsman. Only one other surety, besides Mr. Hawkins, signed the bond. If the bond was not signed by D. J. Hawkins until January 27th, it was an insufficient bond prior to that date, and was insufficient as an appeal bond. If the file date, as shown in the transcript, is not January 9th, but January 27th, then the bond was filed too late. See article 2092, § 31, Rev. Statutes of 1925. By this section, the bond should be filed within 30 days after the motion for new trial is overruled. For the reasons stated, the motion to dismiss the appeal is granted, and the appeal is dismissed.