Opinion

Howze v. Surety Corp. of America

  • 22 Tex. Sup. Ct. J. 314
  • 584 S.W.2d 263
  • 1979 Tex. LEXIS 307
Court
Texas Supreme Court
Filed
Apr 25, 1979
Status
Published
On the bench
Greenhill
Cited by
62 cases
Authority
More cited than 8.2%

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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