David Emory Garrett, Relator v. Honorable Robert Stem, Judge, 82nd District Court, Robertson County, Texas, et al., Respondents--Appeal from of County

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Laws-info.com » Cases » Texas » 10th District Court of Appeals » 1993 » David Emory Garrett, Relator v. Honorable Robert Stem, Judge, 82nd District Court, Robertson County, Texas, et al., Respondents--Appeal from of County

State: Texas

Court: Texas Northern District Court

Docket No: 10-93-00154-CV

Case Date: 09/15/1993

Plaintiff: David Emory Garrett, Relator

Defendant: Honorable Robert Stem, Judge, 82nd District Court, Robertson County, Texas, et al., Respondents--Ap

Preview:David Emory Garrett, Relator v. Honorable Robert Stem, Judge, 82nd District Court, Robertson County, Texas, et al., Respondents--Appeal from of County
Garrett v. Stem /**/ IN THE TENTH COURT OF APPEALS

No. 10-93-154-CV

DAVID EMORY GARRETT Relator v.

HONORABLE ROBERT STEM, JUDGE, 82ND DISTRICT COURT, ROBERTSON COUNTY, TEXAS, ET AL., Respondents

Original Proceeding

OPINION DENYING PETITION FOR WRIT OF MANDAMUS AND OTHER RELIEF

By order dated August 18, 1993, we granted Relator David Emory Garrett permission to file a petition seeking mandamus relief to require Cornelia Starkey, District Clerk of Robertson County, Texas, and the Honorable Robert Stem, Judge of the 82nd Judicial District Court of Robertson County, Texas, to approve and file an appeal and supersedeas bond. Garrett also seeks relief from further proceedings during his appeal. A Decree of Divorce was signed on May 24, 1993. Relator filed a notice of appeal and affidavit of inability to pay costs on appeal. See Tex. R. App. P. 40. After a hearing on the real party in interest's contest of the affidavit, the contest was determined in her favor.

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By order signed on July 19, Judge Stem set the amount of the supersedeas bond at $25,000 to suspend Relator's obligation to pay Teresa Ann Garrett, the real party in interest, the sum of $55,000 but further directed that the bond "shall not supersede any Court Order set out above regarding either the Akins note or the shares of Common Sense Mutual Fund." The July 19 order further required Relator to endorse and turn over the "Akins note," one of the items of property awarded to Teresa Ann Garrett. APPROVAL OF THE BOND On July 22, Relator attempted to file an appeal and supersedeas bond to perfect his appeal and to suspend operation of that part of the Decree relating to the property division. The District Clerk, apparently at the direction of Judge Stem, refused to accept the bond. Notice of a hearing on objections filed by the real party in interest was given, and on August 9, the Court ordered that Relator "amend his bond," that the amended bond suspend the execution of the judgment only as set out in the July 19 order, and that "any amended bond be submitted to the Attorney for [the real party in interest], with an opportunity to object to the form or substance or both of the bond, before the Court's consideration of the sufficiency of the bond." A bond that Relator contends complies with Judge Stem's order was tendered to the District Clerk on August 10. The clerk marked the amended bond "received." On August 27, the District Clerk approved the bond in the amount of $25,000 "to suspend and supersede that portion of the Decree of Divorce of David Emory Garrett's Obligation to pay Teresa Ann Garrett FIFTY FIVE THOUSAND & NO/100 ($55,000.00) DOLLARS as set out in the [order] dated July 19, 1993." Approval of a supersedeas bond is the responsibility, in the first instance, of the clerk of the trial court. Id. 47(a). The court's role is one of "review" after approval by the clerk. Id. A supersedeas bond will, if the amount is sufficient, also act as a cost bond for the appeal. Id. Thus, the clerk's responsibility has been fulfilled by her approval of the bond tendered by Relator in the language of the court's order setting the amount of the bond. THE AKINS NOTE Teresa concedes that a judgment debtor has an absolute right to supersede an entire judgment. See State v. Schless, 815 S.W.2d 373, 375 (Tex. App. Austin 1993, original proceeding). A judgment debtor may also suspend only part of a judgment. Tex. R. App. P. 47(j). We cannot determine from the record before us, however, whether Relator has ever asked the court to set an amount of bond to supersede the judgment as it relates to the Akins note. See id. 47(c). No statement of facts has been presented from the hearing held on July 12, the hearing that resulted in the order setting the supersedeas bond, and no other request appears in the record. In the absence of such a request, we have no alternative but to deny Relator's petition. Terrazas v. Ramirez, 829 S.W.2d 712, 723 (Tex. 1991). The temporary relief granted in our order of August 18 is vacated. See Tex. R. App. P. 121(d). The Petition for Writ of Mandamus, Writ of Prohibition, Writ of Injunction, and Motion to Stay Further Proceedings in the Trial Court is denied.

PER CURIAM Before Chief Justice Thomas, Justice Cummings and Justice Vance Petition for writ of mandamus denied Order issued and filed September 15, 1993 Do not publish
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