holding that surety is not bound when judgment was obtained by fraud or collusion
How later courts described this case
- holding that surety is not bound when judgment was obtained by fraud or collusion
- surety on a general undertaking bond is not bound by a judgment against its principal unless it is given notice and an opportunity to defend
- “These bonds are, therefore, [j]udgment bonds; and the surety is bound despite the fact that it was neither notified nor joined as a party.”
- distinguishing between "particular judgment" bond and "general undertaking" bond
Written by the judges who cited it.
The opinion
ON MOTION FOR REHEARING
The motion for rehearing of Allen R. Howze is granted. Howze specifically pleaded for pre-judgment interest in his counterclaim against Surety. This Court has held that pre-judgment interest is recoverable as a matter of right where an ascertainable sum of money is determined to have been due and payable at a date certain prior to judgment. Republic National Bank of Dallas v. Northwest National Bank of Fort Worth, 578 S.W.2d 109 (Tex.1979); and Black Lake Pipe Line Co. v. Union Construction Co., 538 S.W.2d 80, 95-96 (Tex.1976).
Howze had a judgment against the mobile home dealer far in excess of the amount of Surety’s bond. He made a demand to Surety for payment of the face amount of the bond on July 28, 1976. An ascertainable amount was thus due and owing to Howze from July 28, 1976.
The judgment of this Court is reformed to include interest at a rate of six per cent from that date until June 29, 1977.
The motion for rehearing of Surety Corporation of America is overruled.