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Rule 365. Additional Bond

TEXT

The sufficiency of a cost or supersedeas bond shall be reviewable by the appellate court and said court may require additional bond or security in case of the insufficiency of the amount of said bond or the sureties thereon, whether arising from the fixing of an inadequate amount in the trial court or from any subsequent condition which may arise affecting the sufficiency of said bond. The court in which the appeal is pending shall, upon proper showing of such insufficiency, require the giving of an additional bond to be ap­proved by the clerk of the court in which said appeal or writ of error is pending.

Source: Art. 2272, with minor textual change.

Oct. 29, 1940, eff. Sept. 1, 1941.

AMENDMENTS

Dec. 5, 1983, eff. April 1, 1984

Repealed by order of April 10, 1986, eff. Sept. 1, 1986.

ADVISORY OPINIONS

Question: Under Rule 364, subdivision (a), providing that appellant desiring to suspend the execution of a judgment may do so by giving a bond “in a sum at least the amount of the judgment, interest and costs," how is the provision for interest to be taken care of when the rule does not prescribe the amount of interest or the length of time for which interest shall be paid?

Answer: Rules 364 and 368, both in­clusive, should be considered together. The condition of the supersedeas bond is that appellant will perform the judgment, sentence or decree of the appellate court "and pay all such damages as said court may award against him." The intent is that, pending the appeal, the supersedeas bond shall always be in an amount and with sufficient sureties to enable the ap­pellee to collect the judgment against the appellant and his sureties if it is affirmed. The bond should, therefore, be “in a sum at least the amount of the judgment" plus an estimated amount of interest, which will probably accrue during the appeal at the rate prescribed in the judgment, plus the estimated amount of the costs. Rules 365 and 366 prescribe an adequate remedy to the appellee if the bond in the first instance is not adequate or if pending the appeal it becomes insufficient either as to amount or as to the sureties.

5 Tex. B.J. 96 (1942) reprinted in 8 Tex. B.J. 9 (1945).

(No. 18) Question: Under Rule 364, subdivision (a), providing that appellant desiring to suspend the execution of a judgment may do so by giving a bond "in a sum at least the amount of the judgment, interest and costs," how is the provision for interest to be taken care of when the rule does not prescribe the amount of interest or the length of time for which interest shall be paid?

Answer: Rules 364 and 368, both in­clusive, should be considered together. The condition of the supersedeas bond is that appellant will perform the judgment, sen­tence or decree of the appellate court "and pay all such damages as said court may award against him." The intent is that, pending the appeal, the supersedeas bond shall always be in an amount and with sufficient sureties to enable the appellee to collect the judgment against the appel­lant and his sureties if it is affirmed. The bond should, therefore, be "in a sum at least the amount of the judgment" plus an estimated amount of interest, which will probably accrue during the appeal at the rate prescribed in the judgment, plus the estimated amount of the costs. Rules 365 and 366 prescribe an adequate remedy to the appellee if the bond in the first instance is not adequate, or, if pending the appeal, becomes insufficient either as to amount or as to the sureties.

5 Tex. B.J. 321 (1942) reprinted in 8 Tex. B.J. 21 (1945).