On Motion for Rehearing.
The appellee, in his motion for rehearing, among other things, presents as error the action of this court in reversing the judgment obtained by him against Florence Jones and J. M. Jones in their individual capacity, for the reason that he sued and obtained judgment against Florence Jones and J. M. Jones each in his individual capacity and a,s executor and executrix and trustees of the estate, of E. M. Jones, deceased, and that no appeal or supersedeas bond was filed by either Florence Jones or- J. M. Jones, as individuals, and therefore no appeal was perfected by them-*499in their individual capacity, and the judgment' of the trial court as to them as individuals should in all things be affirmed.
The appellants have filed a motion to be allowed to file an amended and corrected su-persedeas bond, which they tender with their motion, perfecting their appeal from the judgment obtained against them in their individual capacity and as executor and executrix and trustees of the estate of E. M. Jones, deceased.
The appellants show by affidavit that ap-pellee’s attorney prepared the judgment to be entered in his behalf and presented appellants’ attorneys with a carbon copy thereof. That in such carbon copy no judgment against the defendants in their individual capacity was tafeen. That, relying on the correctness of this carbon copy, appellants prepared and filed their supersedeas bond, perfecting their appeal for Florence Jones and J. M. Jones as executrix and executor and trustees of the estate of E. M. Jones, deceased. That thereafter the attorneys for appellee changed the judgment to be entered so as to constitute a judgment against the defendants in their individual capacity in addition to the judgment against them in their representative capacities. That appellants’ attorneys were not notified of the change, were not furnished with a carbon copy -of the judgment as changed, .and learned of such change just prior to their application to be allowed to file an amended supersedeas bond, from ap-pellee’s attorneys, who requested permission to inspect the carbon copy of the judgment theretofore furnished, and explained at this conference for the first time that the judgment had been changed and made to read so 'as to constitute a judgment against the defendants in their individual capacity as well as in their representative capacities. Attached to this affidavit is a carbon copy of the judgment as originally prepared by ap-pellee’s attorneys and presented to appellants’ attorneys.
Appellee does not controvert the facts as stated in appellants’ verified motion to be allowed to file an amended supersedeas bond, but takes the position that, inasmuch as under the law appellants were not required to file a supersedeas bond as executor and executrix, the filing of such supersedeas bond d'id not perfect appellants’ appeal to this court, and therefore no appeal was perfected by the filing of such bond, and, in law, there is no bond to be amended.
The appellants were required, in order to perfect their appeal as trustees, to give a su-persedeas bond as trustees; hence the court acquired jurisdiction of the appeal. 3 Tex. Jur. 344.
The transcript in this ease was filed in this court on the 5-th day of March, 1931. The case was submitted on June 3, 1931, and on June 10th the judgment was reversed, and the cause remanded, and thereafter, on June 22d, appellee filed his motion for rehearing and for the first time áttacfes the sufficiency of appellants’ supersedeas bond.
“No motion was made to dismiss for want of proper bond, nor was the jurisdiction of this court in any way questioned until this motion for rehearing was filed herein by ap-pellees. The objection to the bond, if at all well taken, comes too late.” Drake et al. v. Yawn et al. (Tex. Civ. App.) 248 S. W. 726, 730, and authorities cited.
“The appeal bond was made payable to Estelle’s sons, but not to their guardian ad litem, and it is urged that the bond was therefore defective; that this court acquired no jurisdiction; and the appeal should be dismissed. The record was filed in this court March 21, 1930, and this alleged defect in the bond was first called to this -court’s attention in the brief of Estelle’s sons filed October 8, 1930. The precise contention of appellant was overruled in the recent case of Roberts v. Stoneham (Tex. Civ. App.) 31 S.W.(2d) 856, 858, from which we quote:
“ ‘Under R. S. art. 1840, defects both of substance and of form in an appeal bond may be cured by amendment. Such defects are not jurisdictional (Foster v. Bunting [Tex. Civ. App.] 19 S.W.(2d) 784), and are waived by failure to present objections to the bond by motion within thirty days after the transcript is filed. Court of Civil Appeals Rule 8; De Proy v. Progakis (Tex. Civ. App.) 259 S. W. 620.’ ” Hart et al. v. Estelle et al. (Tex. Civ. App.) 34 S.W.(2d) 005, 671.
Appellants’ motion to be allowed to file an amended supersedeas bond is granted, and appellee’s motion for rehearing is overruled.