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IN RE: ESTATE OF ROBERT TAYLOR, DECEASED: JOYCE PERKINS v. LIZZIE LEE THOMPSON

FEBRUARY 09, 1989

IN RE: ESTATE OF ROBERT TAYLOR, DECEASED: JOYCE PERKINS
v.
LIZZIE LEE THOMPSON, THELMA LEE NEWTON, BOOKER T. LEE AND WESTERN SURETY CO.



EN BANC:

PRATHER, JUSTICE, FOR THE COURT:

ON EMERGENCY MOTION TO GRANT A STAY OF EXECUTION PENDING REVIEW OF A CONTESTED SUPERSEDEAS BOND

This appeal addresses for the first time an interpretation of Mississippi Supreme Court Rule 8 relating to a stay of judgment pending appeal under a supersedeas bond.

 The merits of this case concern the distribution of the estate of Robert Taylor, deceased. Joyce Perkins claimed to be the illegitimate child of the deceased. From a judgment against her in the Chancery Court of Warren County she attempted to perfect an appeal before this Court. A dispute arose over the amount, the sufficiency, and the form of her supersedeas bond. The appeal now before this Court concerns only the bond issue, not the merits of the case. Ms. Perkins raises the following issues:

 (1) May the appellant in her capacity as administratrix of the Taylor estate under bond appeal without posting a supersedeas bond?

 (2) Is the amount of the appellant's bond sufficient?

 (3) Is the technical form of the appellant's bond sufficient?

 I.

 For background purposes, a brief reference to the merits of the case is necessary. Joyce Perkins claimed to be the illegitimate daughter of the deceased Robert Taylor, and thus his heir. Perkins had qualified as administratrix of Taylor's estate, which estate was in due course closed. Subsequently, the present litigation began by the brothers and sisters of the decedent reopening the estate alleging that Perkins was not an heir at law.

 Since the full record of the case on the merits is not before the Court at this time, the partial record before this Court leaves the full facts somewhat in doubt. It appears that the personal assets of the estate were returned to the court upon an adverse finding of heirship against Joyce Perkins. If this is true, then the realty, and its improvements, the cash, stocks and bonds are all under the direction of the chancery court in the administration of Robert Taylor's estate. The record that is before us apparently shows the assets and their value to be:

 Real property $104,000.00

 Improvements 17,000.00

 Cash on hand 157,000.00

 Series E. Bonds 12,000.00

 129 Shares of IBM stock 16.000.00

 TOTAL $306,000.00

 Apparently, Western Surety Company, the bonding company that underwrote Perkins' administratrix's bond, asked to intervene and sought recovery. The chancery court entered a judgment for Western Surety against Perkins in the amount of $39,155.65 pursuant to an indemnity agreement she had signed with Western Surety Company. Judgment was also entered against her for interest totaling $3,708.10; thus the total judgment given Western Surety against Perkins amounted to $42,863.75. Upon receiving such judgment, Western Surety sought to garnish monies that the chancery court decreed due Joyce Perkins from the estate funds. Perkins was unsuccessful in her effort to prevent the issuance of the writ of garnishment.

 On January 29, 1988, Ms. Perkins filed a petition for rehearing of her motion to quash the writ of garnishment in this Court. This Court granted a rehearing under the new rules of the Supreme Court, and all parties responded voluntarily. In an order styled, Misc. No. 2453-C, dated February 24, 1988, this Court granted a supersedeas or stay of the chancellor's awarding of a money judgment. This Court affirmed the amount of the bond for $125,000 and remanded the case to the trial court to test the sufficiency of the new bond.

 The chancery court held another hearing on March 8, 1988. At the conclusion of this hearing, the chancellor rendered his opinion, and entered an order pursuant to this decision. In this order the chancellor found the bond to be insufficient both as to the amount of the bond and to the form.

 Ms. Perkins filed a third petition for rehearing on the bond on March 17, 1988, and the hearing was held in the Chancery Court of Warren County on April 29, 1988. In an order dated May 6, 1988, the chancellor once again found the bond to be insufficient, both as to form and as to the money amount. Ms. Perkins then filed a notice of appeal to this Court, dated May 13, 1988. By a judgment dated August 2, 1988, the ...


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