[19] In the trial court, the parties to this appeal litigated an action for quiet title, ejectment, and accounting of rents for real property. The trial court granted summary judgment in favor of Appellees. The summary judgment included money damages in the amount of $5,700. Appeal was taken from this summary judgment.
[20] On assignment to the Court of Appeals, that court affirmed the summary judgment of the trial court by unpublished opinion, dated November 17, 1987. Neither party filed a petition for rehearing. However, Appellees subsequently filed a motion requesting this Court enter an order rendering a judgment on Appellant's supersedeas appeal bond, as authorized by Supreme Court Rule 31:
. . . . .(2) If the original supersedeas bond or certified copy is not included in the record, or if so included and not called to the Court's attention in the briefs, the appellee, or the party entitled thereto, after the opinion of the Court is filed and prior to the time of issuing the mandate, may file with the Clerk a motion for judgment on the supersedeas bond, and this Court, in all proper cases, where the appellee is entitled thereto, will enter an order rendering judgment on said bond.
. . . . .
[21] I concur with the majority of this Court insofar as this Court is authorized to render judgment on the supersedeas bond; however, I must dissent with respect to the majority's interpretation of the effect of the amendment on the amount of the undertaking. *Page 664 The amendment did not increase the penal sum of the supersedeas bond. There is nothing in the language of the amendment stating an increase in the penal sum of the underlying. Absent such language an increase in the penal undertaking cannot be inferred by construction. The scope and extent of the undertaking are clearly ascertainable from the language used within the four corners of the bond. The amendment to the bond served merely to specify the items secured up to the stated limit of recovery in the previously executed bond:
"the bond heretofore executed . . . covers all court costs incurred in connection with said appeal or any judgment entered in the lower court."
[22] Accordingly, I would grant judgment to Appellees on the supersedeas bond, but not to exceed the penal sum of the bond which is $12,000.
[23] I am authorized to state that Justice Summers concurs in the views herein expressed.