¶1concurring in part and dissenting in part.
¶2I concur in result in part and dissent in part. I agree with the principal opinion that the trial court correctly determined that right to appeal should be preserved as to the bonded assets, in this case the policy of insurance. I also agree that the trial court did not err when it forced the insurance company, as the price for the right to appeal, to pay interest on the entire unpaid portion of the judgment in the event the appeal is resolved against the defendant and his insurance company.
¶3The question remaining in the case is whether Rule 81.09 should be construed to require either (1) permitting the plaintiff to levy on the balance of the judgment against the defendant before resolution of the appeal, the successfril defendant’s remedy being to sue for the return of the property taken, or, (2) prohibiting plaintiffs levy on the balance of the judgment until resolution of the appeal, the successful plaintiff’s remedy being to sue for and trace any transferred assets. The principal opinion holds that Rule 81.09 mandates the first alternative in the absence of evidence justifying a different result. I disagree.
¶4Litigants and trial judges h'ave been dealing with this problem on a case-by-case basis since insurance first came on the scene. Thus far, I have heard of no gross inequities resulting from our leaving the matter to the discretion of the trial judge. I am confident that a trial judge is in a far better position than we to judge which of the above alternatives will best serve the ends of justice in a given case. The principal opinion’s interpretation of Rule 81.09 displaces the informed judgment of the trial judge and substitutes in its place an arbitrary rule. I do not believe the Court contemplated this result when it adopted Rule 81.09 nor do I believe the terms of the rule require the conclusion reached. Because of my firm belief that one should not try to fix a thing that is working, I would quash the writ.
¶5dissenting.
¶6Because Rule 81.09 was not followed by the defendant or the trial court, the trial court was without jurisdiction to proceed with respect to setting a supersedeas bond, much less a bond in one-fourth of the amount of the judgment, I dissent.
¶7As the principal opinion notes, Rule 81.09 mandates that a proposed supersedeas bond be presented to the trial court for approval “at or prior to the time of filing notice of appeal” but, nevertheless, concludes that the rule permits the trial court to set the bond after the notice of appeal has been filed. This conclusion would seem to fly in the face of Rule 81.10 which provides:
If a supersedeas bond is not filed within the time specified, or if the bond filed is found insufficient, and if the notice of appeal has not been filed, a bond may be filed with the permission of the trial court. After the notice of appeal is filed, the application for leave to file a bond may be made only in the appellate court.
¶8Here, it is admitted that the notice of appeal was filed May 8, 1983. In my view of Rule 81.09 and 81.10, the trial court no longer had jurisdiction on May 4 or May 6 to set a bond but that defendant could make application for leave to file a bond with the appropriate appellate court. I cannot agree there was substantial compliance with Rule 81.09 and submit Rule 81.10 makes it clear the trial court was without jurisdiction to set a supersedeas bond. Neither can I agree that Rule 81.09 authorizes a partial supersedeas bond.
¶9I would make our rule absolute, without modification.