Opinion
Motion No. 11,195.
Decided April 18, 1934.
Motion for Rehearing — Surety on Supersedeas Bond.
The surety on a supersedeas bond against whom a judgment has been rendered is a party to the suit and the writ of error, and where the application for writ of error of his principal has been refused and the principal, who has been declared a bankrupt, does not ask for a rehearing, his surety may file a motion for rehearing urging only such errors as those duly assigned by his principal.
Motion for leave to file a motion for rehearing of an application, by the sureties of the plaintiff in error, who does not ask for a rehearing.
Geo. W. Armstrong and John H. Kirby filed suit against American Bank Trust Company in the District Court of Dallas County seeking to cancel certain notes executed by them. Thereafter the Bank sued Armstrong and Kirby on these notes, and the two cases were consolidated. Trial court rendered judgment for the Bank against Armstrong and Kirby, which judgment was affirmed by the Court of Civil Appeals. ( 63 S.W.2d 906.) Armstrong and Kirby made application to the Supreme Court for a writ of error, which was refused on January 24, 1934, but they filed no motion for rehearing of said application. The Metropolitan Casualty Insurance Company of New York, surety on the supersedeas bond of John H. Kirby, against whom judgment was rendered in the Court of Civil Appeals, has asked leave to file a motion for rehearing of the application, alleging that both Armstrong and Kirby are insolvent and that it, as surety, will have to pay the judgment.
Leave to file motion is granted. (See this case — Table of Cases Reviewed.)
Seay, Seay, Malone Lipscomb, of Dallas, for surety on supersedeas bond of plaintiff in error.
In this case, the Court of Civil Appeals, under Article 1857, Vernon's Anno. Texas Civil Statutes, entered judgment against the Metropolitan Insurance Company, as surety on the supersedeas appeal bond of plaintiff in error, John H. Kirby, and application for writ of error by Kirby has been refused. John H. Kirby having been adjudged bankrupt and asking no rehearing here, his surety asks leave to file a motion for rehearing of the judgment of this court. The supersedeas surety against whom a judgment has been rendered is a party to the suit and to the writ of error. Art. 1767, R. S. In order to prevent injustice being done by an adverse judgment against the surety, he should be heard. He is necessarily represented by his principal, the plaintiff in error in the presentation of assignments of error. While he cannot present new matter, the surety condemned to pay a plaintiff in error's debt may urge errors duly assigned by the plaintiff in error. The motion of the Metropolitan Casualty Insurance Company asks leave to file a motion confined to the assignments of error of plaintiff in error Kirby. Leave to file same is therefore granted.