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MRS. JIM HAMMONDS ET AL. v. C. T. HAMMONDS ET UX. (12/16/57)

December 16, 1957

MRS. JIM HAMMONDS ET AL., APPELLANTS,
v.
C. T. HAMMONDS ET UX., APPELLEES



Author: Northcutt

NORTHCUTT, Justice.

We adopt the appellants' statement of the matters here involved.

The parties will be referred to throughout this case as appellants and appellees.

As reflected by the previous appellate history of the case out of which this appeal grows (Tex.Civ.App., 278 S.W.2d 380; Tex., 285 S.W.2d 362, and Tex.Civ.App., 290 S.W.2d 272), appellants herein filed, in the District Court of Foard County in April 1954, statutory suit for partition of lands in Foard, Haskell, Floyd, Wilbarger and Yoakum Counties, against appellees herein, residents of Floyd County. Plea of privilege filed by appellees was overruled by the trial court, and, such action having been affirmed by this court on December 20, 1954, in its Cause No. 6455 (278 S.W.2d 380), appellees applied for and were granted writ of error by the Supreme Court. In August 1955, while the case remained pending in and undecided by the Supreme Court, appellants filed, in and ancillary to the partition suit pending in the District Court of Foard County, application for receivership as to the lands situated in Floyd County, appellees interposing plea of privilege, plea in abatement and answer to the merits, and, the trial court having, on September 15, 1955, granted the receivership applied for, appellees herein filed their supersedeas bond and appealed from the order granting the receivership, in this Court's Cause No. 6587. On January 4, 1956, the Supreme Court handed down its decision, reversing and rendering the judgment of this court in Cause No. 6455, as well as that of the trial court, and ordering the case transferred to Floyd County, Texas (285 S.W.2d 362). Pursuant to such decision, this Court rendered judgment in Cause No. 6587 on April 2, 1956, reversing the judgment of the trial court appointing receiver, discharging the receiver, and transferring the cause to Floyd County (290 S.W.2d 272).

As shown by the transcript in this appeal the case was disposed of on the merits by agreed judgment entered on June 25, 1956, and this appeal is one from order of the District Court of Floyd County, entered February 20, 1957, overruling Motion of Appellants, filed June 28, 1956, to retax costs and to strike from the costs in the case the sum of $1,000, representing premium for supersedeas bond with corporate surety filed by appellees in connection with their appeal from order of the District Court of Foard County granting receivership, the overruling of such motion being the single point of error on which this appeal is predicated.

The trial judge herein made the following Findings of Fact and Conclusions of Law:

"Findings of Fact

"1.

"I find as a fact that the District Court of Foard County, Texas, formally ordered the Defendants in this cause to make and file in said cause a Supersedeas Bond signed by a corporate surety company to enable said Defendants to supersede the Judgment of the District Court of Foard County, Texas, appointing a receiver in said cause.

"2.

"I find as a fact that the Defendants complied with such order and were thereby caused to incur the item of $1,000.00 which was charged them as a premium by the surety company who executed such supersedeas bond, and which said item appears as a part of the Court costs prepared by the District Clerk of Foard County, Texas, and filed in the District Court of Floyd County, Texas.

"3.

"I find as a fact that such item of cost, to-wit, the sum of $1,000.00 charged as a premium by the surety company who executed the supersedeas bond in behalf of the Defendants, was duly noted in the Bill of Costs filed in this Court on February 27, 1956, and that the same was a matter of record in this Court on June 25, 1956, when the final Agreed Judgment was entered in this cause and in ...


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