Where an appeal is taken or a writ of error sued out, from a judgment or decree of any district court involving the title to or possession of real or personal property, the trial court shall fix the amount of the supersedeas bond, if supersedeas is granted, for such sum as will indemnify the appellee for all damages that may result from such supersedeas, or from such appeal or writ of error. Said bond shall be conditioned to prosecute the appeal with effect and pay all damages and costs that may result to the appellee, if said appeal or writ of error be dismissed or the judgment or decree appealed from shall be affirmed. In case the title to or possession of real estate is involved in such action, the rental value, and all damages to improvements and waste, shall be considered elements of damages.
History: Laws 1933, ch. 6, § 1; 1941 Comp., § 19-1006; 1953 Comp., § 21-10-6.
ANNOTATIONSCross references. — For supersedeas and stay in civil action, see 39-3-22 NMSA 1978.
For supersedeas and stay, see Rule 12-207 NMRA.
Not applicable as bond for value of property sought. — This section was not considered to be applicable as a bond for the value of the property of which possession was sought. Burroughs v. United States Fid. & Guar. Co., 1964-NMSC-244, 74 N.M. 618, 397 P.2d 10, overruled on other grounds by Quintana v. Knowles, 1992-NMSC-016, 113 N.M. 382, 827 P.2d 97.
Supersedeas bond not required in adjudication of title. — Where party out of possession of real estate appeals from an adverse judgment, decreeing title in party in possession, supersedeas bond is not required. Higgins v. Fuller, 1943-NMSC-033, 48 N.M. 215, 148 P.2d 573.
Self-executing judgment not encompassed by section. — Supersedeas bond is not required where, under judgment from which appeal is made, there would be no judgment to stay nor any change as to status of the parties regarding either title or possession, as a self-executing judgment, order or decree which does not command or permit performance of an act or which cannot be actively enforced by execution, etc., is not encompassed by the section. Higgins v. Fuller, 1943-NMSC-033, 48 N.M. 215, 148 P.2d 573.
The posting of a supersedeas bond is necessary to maintain the status quo when appealing from a judgment decreeing ownership of realty in a party not in possession thereof; however, such a bond is not required where, under the judgment appealed from, there exists no judgment to stay, no change in the ownership or possession of the property, and such a bond would serve no purpose. Thus, a self-executing judgment or order which does not command or permit that any act be done, or is not of a nature to be actively enforced by execution or otherwise, is not within this section. Salas v. Bolagh, 1987-NMCA-138, 106 N.M. 613, 747 P.2d 259.
If status quo to be maintained, bond to be provided. — This section is nothing more than a provision that if the status quo is to be maintained a supersedeas bond must be provided in such an amount as will "indemnify the appellee, from all damages that may result from such supersedeas," the amount to be fixed by the court. Absent an order of the court and a bond, the judgment remains in effect and may be enforced. Gregg v. Gardner, 1963-NMSC-223, 73 N.M. 347, 388 P.2d 68.
Where posting of supersedeas bond not prerequisite to appeal. — As a precondition to operation of this section, the appellant must have moved for supersedeas, and the trial court must have granted the motion. Nothing in this section requires the appellant to post a supersedeas bond when supersedeas has not been sought and granted. Where no stay has been sought, a trial court, under this section, cannot order the appellant to post a bond. Quintana v. Knowles, 1992-NMSC-016, 113 N.M. 382, 827 P.2d 97.
Amount of supersedeas bond was not excessive. — Where the appraised value of defendant's home was $206,000; the property sold for $100,000 or 48.7% of appraised value at the foreclosure sale; the purchaser purchased the property for a potential profit of $106,000 if the property were resold; the district court considered the lost rental value, interest on the money paid to purchase the property, and the potential for damages and waste to the property while the appeal was pending, the district court did not abuse its discretion in setting the supersedeas bond at $150,000, regardless of the fact that defendant could afford to post only a $50,000 supersedeas bond. Charter Bank v. Francoeur, 2012-NMCA-078, 287 P.3d 333, cert. granted, 2012-NMCERT-008.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 5 Am. Jur. 2d Appellate Review § 436 et seq.
When appeal is or is not deemed to have been prosecuted "with effect" or "to effect" within condition of supersedeas bond, 163 A.L.R. 410.
4 C.J.S. Appeal & Error § 421 et seq.