Phelan v. Settle

431 S.W.2d 376, 1968 Tex. App. LEXIS 2549

• Court: Court of Appeals of Texas
• Decided: August 20, 1968
• Docket: 7901
• Status: Published

Opinion

PER CURIAM.

Appellee has filed a motion, duly sworn to and uncontroverted, to require appellants to file new appeal and supersedeas bonds on the ground that the two sureties on both bonds, M. F. Guetersloh, Jr. and James W. Smith, do not own sufficient exempt property to satisfy the terms of the bonds.

W. T. Settle, plaintiff below, recovered a judgment in the District Court of Hockley County against M. F. Guetersloh and wife, Emma Guetersloh Trust and its sureties jointly and severally for $20,000.00. The defendants below gave notice of appeal and the Clerk of the District Court approved the appeal bond in the amount of $2,000.00 and the supersedeas bond in the amount of $25,000.00. M. F. Guetersloh, Jr. and James W. Smith are sureties on both bonds. Ap-pellee’s sworn motion challenging both bonds is accompanied by an affidavit by the appellee’s attorney of record and certificates of the Tax Assessor-Collector of Hockley County certifying to the property on the tax rolls in the names of the two sureties. The record shows the only property owned by each surety in Hockley County is the property designated as their homestead and is not subject to execution. It is evident both the appeal bond and the supersedeas bond are insufficient.

Appellee’s motion to require an additional appeal bond and supersedeas bond is granted. Appellants, under the provisions of Rules 365 and 366, Texas Rules of Civil Procedure, will be allowed twenty days from the date of the service of this order in which to file an additional appeal bond and supersedeas bond in the same amounts of the original bonds, to be approved by the Clerk of this court.