I do not concur in the majority opinion of this court reinstating this cause and granting a mandamus compelling the district clerk of Karnes county to approve an appeal supersedeas bond tendered by appellant and signed by the Commercial Standard Insurance Company, by J. E. Earnest, vice president, and attested by C. L. Mansfield, assistant secretary, as surety.
The record in this case was presented here March 26, 1934, which was the last day for filing same under an enlargement of time theretofore granted by this court. The clerk, upon an examination of the record, found that the district court of Karnes county had adjourned on February 1, 1934, and that the appeal bond had been filed and approved on February 23, 1934, and not within the twenty days required by article 2253, R.S. 1925, as amended by Acts 1927, c. 15, § 1 (Vernon's Ann.Civ.St. art. 2253). This court upon an examination of the record sustained the action of the clerk in not filing the record and notice was given to appellant of such action.
Appellant then secured a hearing before the district judge of Karnes county for the purpose of having the record corrected. The district judge, upon this hearing, found that the appeal bond was presented to the district clerk on February 17, 1934, and at that time the clerk placed her file mark on the bond and signed same officially, telling attorney for appellant if the bond was a good bond she would approve it. On the next day she wrote to the state insurance commissioner inquiring whether or not the agent who had signed the surety company's name to the purported cost bond had authority to do so, and whether or not the Fidelity Deposit Company of Maryland had a permit to do business in Texas. On February 23, 1934, the clerk received an affirmative answer to her inquiry and then proceeded, for the first time, to approve the bond. The clerk made the mistake of changing the original file mark from the 17th to the 23d day of February.
The majority opinion is apparently based upon the theory that the filing of an unapproved appeal bond with the clerk is sufficient to perfect an appeal to this court. The only decision on the point, that I have been able to find, is to the contrary. In Houston T. C. R. Co. v. Smith (Tex.Civ.App.) 97 S.W. 519, the court said: "The appellee in the court below on the 11th day of December, 1905, recovered a judgment against the appellant for $112.50. Notice of appeal was given by appellant, and court adjourned on the 21st day of December, 1905, On the 5th day of January, 1906, the appellant executed an appeal bond, which is marked `Filed on the 8th day of January, 1906.' The clerk of the county *Page 701 court on the 11th day of January, 1906, fixed the probable amount of the costs at $75, and on that day also approved the appeal bond. The appellee, in her motion to dismiss, contends that the bond could not be filed prior to the time the clerk fixed the probable amount of the costs and the time he approved the bond, and that causing the same to be indorsed `Filed' prior to that date was unauthorized. The act of the clerk fixing the probable amount of the costs and his approval of the bond is essential to its validity, and a paper filed with the record in the case prior to that time, purporting to be a bond, could be given no official recognition. Therefore, the bond, having been approved more than 20 days after the adjournment of the court, the appeal will be dismissed."
The trial court found that while the clerk did not approve the bond until February 23, she should have approved it on February 17, 1934. It is settled law that the clerk and not the judge is charged with the discretion of approving appeal bonds. Article 2265, R.S. 1925. And the district judge has no power to control the clerk in the discharge of this discretionary duty. Hill v. Halliburton, 32 Tex. Civ. App. 21, 73 S.W. 21. The action of the trial judge could only be upheld on the theory that the clerk abused her discretion in making inquiry about the surety company tendered as a surety on this bond. The judge does not find any abuse of discretion. As a matter of fact, the statutes make it a penalty of $500 for any person to accept a bond of a surety company that does not have a permit to do business in Texas. Article 4978, R.S. 1925.
The majority opinion points out that the filing of this record must be governed by rule 1 for the Courts of Civil Appeals, and this is undoubtedly true. However, where rule 1 states that a reasonable time shall be allowed to amend the record, it is now subject to the limitation that a reasonable time is fifteen days and if that is not sufficient a further enlargement of time must be applied for under the provisions of article 1839, supra. Jenkins v. Runnels (Tex.Civ.App.) 69 S.W.2d 810; Hunter v. Moore, 122 Tex. 583, 62 S.W.2d 97; Red v. Bounds, 122 Tex. 614,63 S.W.2d 544; Wall v. Gillen (Tex.Civ.App.) 63 S.W.2d 270; Harris Co. v. Boswell (Tex.Civ.App.) 64 S.W.2d 1029.
The authorities cited in the majority opinion were all decided long before article 1839 was enacted in its present form and at a time when there was no limitation on the court's discretion as to the filing of records.
In reference to the mandamus here applied for, I am of the opinion that this writ was properly refused for the reasons stated in our original opinion. The majority of this court have taken the view that where a surety company bond is tendered to an approving officer all discretion is taken away and that the bond need only to be filed, as the law approves it without any action on the part of the officer. Language to this effect is to be found in the authorities cited, but to my mind the facts are so different in these cases that they should not be accepted as ruling this case. In McKenzie Construction Co. v. City of San Antonio, the court said (50 S.W.2d 349, 351): "Appellees further attack the ordinance accepting appellant's proposal on the ground that the city commissioners did not formally approve the bond executed and delivered by appellant. The record discloses that each of the four surety companies on appellant's bond were authorized to act as such sureties at the time the bond was executed. Under the provisions of our Revised Statutes, article 4970, we hold that no such formal approval was necessary. The United States Supreme Court has likewise so held in a similar case involving a similar statute. See United States v. Purcell Envelope Co., 249 U.S. 319, 39 S.Ct. 300, 63 L.Ed. 620."
It will be noted that the court uses the words "formally approve" and further shows that there was an acceptance of and acting under the bond sufficient to show elements of estoppel. In the case cited we find the following significant language, indicating that discretion may be exercised: "The company was then directed by the department to execute the necessary contract in quadruplicate, which it did, and returned the contract to the department with a surety whose responsibility was not questioned at any time nor was other security demanded, as it might have been."
In this case the clerk refused to approve the bond because she did not think it was a good bond, as shown by her written indorsement, and more security was exactly what she was demanding.
In Scribner's Sons v. Marrs, supra, language is found to the effect that article 4970 (4929), R.S. 1925, has the effect of depriving an approving officer of all discretion in passing upon a bond signed by a surety company, but again the facts in that case are so different from the present case, and there are so many elements of estoppel appearing, and further the case being really decided on the theory that the superintendent of public instruction has no authority to question the *Page 702 validity of a contract made by the state textbook board, that this case cannot be accepted as "stare decisis" on the question involved.
Article 4969, R.S. 1925, requires a surety company to publish once a year and file with the insurance commissioner a sworn list of its liabilities and assets. This could be done for no other purpose than to assist the public in determining whether or not they will accept a particular surety company on a particular bond. If the public is to thus exercise its discretion, why should a public official charged with the almost sacred duty of protecting the right of litigants not be permitted to exercise discretion? Any statute which deprives such an officer of his discretion, and thus casts to the winds the right of litigants, is unconstitutional. 21 R.C.L. p. 1159, § 198; Schmitt v. Common Council of Village of Clinton, 111 Mich. 99, 69 N.W. 153, and authorities cited in our original opinion.
There has never been presented to this court or the clerk below a statement of any kind that would in any way indicate whether or not this supersedeas bond is signed by a good and sufficient surety, yet the rule, as accepted by the majority, requires that this court assume the grave responsibility of approving this bond (if ordering it filed is equivalent to an approval) though we have been kept entirely in the dark as to its sufficiency. For the reasons above set forth, I respectfully dissent from the majority opinion.