On Rehearing
PER CURIAM. A majority of the Court, consisting’ of Justices LAWSON, SIMPSON, STAKE-LY, GOODWYN and MERRILL, are of the opinion that this application for rehearing should be overruled.They point out that section 814, Title 7, Code, is controlling and that it does not authorize a personal judgment on a supersedeas appeal bond when the judgment is affirmed, so that it will be against the principal and sureties on such an appeal bond for the principal and interest of a debt or damages and ten per cent penalty thereon, unless there was rendered in the trial court a personal judgment against appellant for the debt or damages in a specified amount of money. They think that the judgment or decree of the trial court set out in the preceding opinion is not one for money. It only ascertains an amount which appellant is authorized to pay within twenty days, if he sees fit to do so. No execution could issue against him before or after the twenty days specified. If he fails to pay it, appellee is given the privilege of removing a certain item of plate glass there described. It was held in the case of Hughes v. Hatchett & Trimble, 55 Ala. 539, that such a judgment or decree is not one for money as contemplated by section 814, supra. See, also, Naylor & Norlin v. Lewiston & Southeastern Electric Ry. Co., 14 Idaho 722, 95 P. 827. They do not think that section 814, supra, authorizes this Court on affirmance to render a personal judgment for money when the trial court made no such judgment.
The majority of the Court think that appellant and the sureties on such a bond are not estopped in this summary proceeding to contend that there was no such judgment because of the recital in *630the bond of its existence. The court is not considering available defenses to a common law action on the bond. But a summary judgment against the bondsmen cannot be rendered unless the facts exist which the statute prescribes shall exist to support such a judgment. Those facts are such as are to be shown by the record. If the record does not show their existence, they cannot be supplied by estoppel to satisfy the statute.
The affirmance is merely to give effect by the judgment of this Court to the decree of the trial court, so as to allow appellant twenty days from the date of this judgment within which he (appellant) may pay the amount specified in the decree of the trial court. Upon his failure to do so that court is given authority to proceed to the enforcement of its decree.
Application for rehearing overruled.
BROWN, J., dissenting. LIVINGSTON, C. J., not sitting.