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Mercantile Bank & Trust v. Cunov
Citations: 733 S.W.2d 717; 1987 Tex. App. LEXIS 8015Docket: 04-87-00238-CV
Court: Court of Appeals of Texas; July 22, 1987; Texas; State Appellate Court
Eileen Cunov filed a motion challenging the sufficiency of the instruments submitted by Mercantile Bank and Trust to suspend the execution of a judgment. Cunov requested the court to strike the district clerk's certificate indicating that the bank had posted a cash bond instead of a supersedeas bond, arguing that this was not compliant with Texas Rules of Appellate Procedure, specifically Rules 47 and 48. Rule 48 allows a party to deposit cash or negotiable obligations in lieu of a surety bond. However, Mercantile Bank deposited non-negotiable receipts instead of the required negotiable instruments. The receipts indicated safekeeping of Federal Home Loan Bank notes and Federal National Mortgage Association bonds but did not meet the deposit or negotiability requirements since they were not directly accessible to Cunov and did not fulfill the necessary conditions outlined in the rules. The court emphasized that simply having these instruments set aside in the bank's account does not satisfy the rules, as they need to be deposited with the clerk. The receipts were also not payable to Cunov or the district clerk, further complicating their validity as security for the appeal. The court concluded that since Mercantile Bank failed to comply with the rules, it did not successfully suspend execution of the judgment. Therefore, Cunov's motion was granted, and the court ruled in her favor, confirming that the bank's actions were inadequate to protect against the execution of the judgment.