64 Tex. 445 | Tex. | 1885
When the appeal was determined in the court of appeals, the case itself was finally determined, unless a review of it was afterwards obtained by writ of error. The only jurisdiction which the county court could properly exercise over it was to enforce and give effect to the mandate of the court of appeals. The dismissal of the appeal left the judgment in force without change, and without any power or jurisdiction in the county court, on the record as it stood, to open the case for the purpose of making any further or additional orders or entries in the cause, other than
If, on the appeal, the judgment had been affirmed, the court below could only have made the orders necessary to carry out the judgment of the appellate court, and in the language of the statute (art. 1419, R. S.), the cause then “shall be dropped from the docket.” A fortiori, would the same result ensue, where the appellate court determines that the cause has not been properly appealed, and for that reason dismisses it from its docket at the costs of the appellant and his sureties, thus leaving the parties in statu quo.
The statutes provide in what cases the appellate courts shall render judgment on the appeal bonds, or bonds for writs of error, gee art. 1049, R. S. But the judicial system does not seem to contemplate a renewal of the jurisdiction of the inferior court over the cause for any purpose other than to cany out the mandate of the superior or appellate court, except where the judgment below is reversed; and even in that case, where it may properly be done, the appellate court will not send the case back for further proceedings, but will render such judgment as the court below ought to have rendered. Article 1048, R. S.
In cases where, upon the face of the record, a judgment may be rendered against the sureties upon the appeal or writ of error bond, such judgment must be rendered by the appellate court, and not by the court a quo.
If in cases where the appellee is entitled to redress or damages by reason of a breach of the condition of the bond, and his remedy cannot be enforced by the appellate court, he needs must seek his remedy by suit upon the bond in some appropriate form of action.
We are of opinion there was no error and that the judgment be affirmed.
Affirmed.
[Opinion adopted June 26, 1885.]
