On Motion for Rehearing.
In our original opinion we affirmed the judgment of the lower court.in favor of appellee for the sum of $1,000 and interest, but reversed that part of the judgment of the trial court in favor of appellee for cancellation of the lease on the hotel and for possession of certain personal property and for foreclosure of the chattel mortgage lien on other property. Appellee on motion for rehearing complains because we refused to render judgment in his behalf against the sureties on the supersedeas bond for that part of the judgment affirmed in his favor.
The power of the Court of Civil Appeals to render summary judgment against the sureties on a supersedeas bond must be found in Revised Statutes 1925, art. 1857, or else it does not exist. Blair v. Sanborn, 82 Tex. 686, 688, 18 S.W. 159; Wichita Falls, Ranger & Fort Worth Ry. Co. v. Combs, 115 Tex. 405, 283 S.W. 135, at bottom page 138. Said article reads, in part, as follows: “When a court of civil appeals affirms the judgment or decree of the court below, or proceeds to render such judgment or decree as should have been rendered by the court below, and such judgment shall be for the same or a greater amount or of the same nature as rendered in the court below, said court shall render judgment against the appellant or plaintiff in error and his sureties on the appeal bond, subject to such disposition as to costs on said appeal as said court may order.” The above article now reads substantially as it did in the 1911 and prior codifications, under which it was held that judgment could be rendered against the sureties on the su-persedeas bond only when the trial court’s judgment was affirmed or when judgment was rendered for as much or more than the amount of the trial court’s judgment. Texas Trunk Ry. Co. v. Johnson, 86 Tex. 421, 424, 25 S.W. 417; Home Investment Co. v. Strange, 109 Tex 342, 351, 195 S.W. 849, 204 S.W. 314, 207 S.W. 307; Wichita Falls, Ranger & Fort Worth Ry. Co. v. Combs, 115 Tex. 405, 283 S.W. 135, 138.
Article 1857 (Rev.St.1911, art. 1627) was amended in 1921 (Acts 1921, 37th Leg., c. 23, p. 55, § 2), so as to permit a Court of Civil Appeals to render judgment against the sureties on the su-persedeas bond even though the judgment of that court exacted less of appellant than did the judgment appealed from [see, in this connection, the holding of the Commission of Appeals in Prim v. Farmers’ National Bank, 51 S.W. (2d) 684, construing, similar provisions of article 1767 regulating the right of the Supreme Court to enter judgment against such sureties in that court]; but when the statutes were recodified in 1925, said original article was readopted substantially as it existed prior to the act of 1921. We must assume that the Legislature by readopting the pertinent portions of the old article intended that the new act should receive the same construction as had been given to the same language in the old article, and that in order to authorize the entry of summary judgment in the Court of Civil Appeals against the sureties on a supersedeas bond, the judgment of that court must be for the same or a greater amount or of the same nature as rendered in the lower court. A contrary holding was made by the Court of Civil Appeals in Denton Milling Co. v. Blewett, 254 S. W. 236; but the Supremé Court in refusing a writ of error called attention to the fact that the sureties on the bond were not complaining of the judgment against them. See Id., 114 Tex. 582, 278 S.W. 1114. A contrary holding was likewise made in the case of Traders & General Ins. Co. v. Lincecum (Tex.Civ.App.) 81 S.W.(2d) 549; but the Supreme Court granted a writ of error therein because of the entry of judgment against the sureties on the supersedeas bond.
The judgment as rendered by this court is for the same amount of money as that rendered by the lower court, but the amount of appellee’s recovery in this court in other respects is materially less than it was in the lower court. Here ap-pellee failed in his effort to cancel the lease on the hotel, failed to recover possession of the personal property sued for, and failed to foreclose the lien given to se*602cure the payment of the unpaid rents. All these constituted material parts of the recovery had in the lower court. It cannot be said, therefore, that the judgment rendered by this court is for the same or a greater amount nor of the same nature as that rendered by the lower court. Johnson v. Snaman (Tex.Civ.App.) 76 S.W.(2d) 824, par. 12; Schutze v. Dabney (Tex.Civ.App.) 204 S.W. 342, par. 5, reversed on other grounds (Tex.Com.App.) 228 S.W. 176. We therefore hold that appellee is not entitled to summary judgment against the sureties on the su-persedeas bond.
. Appellee’s motion for rehearing is overruled.