Spears v. Brown

GUITTARD, Chief Justice. After a default judgment, the defendant filed a petition for writ of error for review by this court and subsequently filed a cost bond. The transcript was tendered for filing more than sixty days after the petition was filed, but within sixty days from filing the bond. Plaintiff has moved for affirmance on certificate under rule 387, Texas Rules of Civil Procedure, on the ground that the sixty-day period prescribed by rule 386, Texas Rules of Civil Procedure, had expired before the transcript was tendered. We deny the motion on the ground that the sixty-day period did not begin to run until the defendant filed his bond. This result follows from the provisions of rule 386 when taken in connection with rule 363, Texas Rules of Civil Procedure. Rule 386 requires the transcript to be filed within sixty days after “perfection of writ of error.” Rule 363 provides that a writ of error is “perfected” when the petition and bond are filed. Although rule 361, Texas Rules of Civil Procedure, provides that the bond shall be filed “at the time of filing the petition,” simultaneous filing is not required so long as both petition and bond are filed within the six-month period allowed by Texas Revised Civil Statutes Annotated, article 2255 (Vernon 1971). Peabody v. Marks, 25 Tex. 19, 23 (1860); Dodson v. Dodson, 277 S.W.2d 278, 279 (Tex.Civ.App.—Amarillo 1955, writ ref’d n. r. e.); Yellow Cab Corp. of Dallas v. Hill, 111 S.W.2d 1193, 1194 (Tex.Civ.App.—Dallas 1937, no writ). The plaintiff-appellee also moves to dismiss the writ of error on the ground that the bond is insufficient because it is for only $250, rather than $500 as required by rule 354(a), Texas Rules of Civil Procedure. Appellant has moved to amend the bond by increasing the amount. He may do so by filing an additional bond under rules 365 and 430 of the Texas Rules of Civil Procedure. Accordingly, appellee’s motion to dismiss is overruled, provided appellant files his new bond within twenty days from receipt of notice from our clerk. Motion to affirm on certificate overruled, motion to dismiss conditionally overruled, and motion to amend bond granted.