Churchill v. Martin

65 Tex. 367 | Tex. | 1886

Robertson, Associate Justice.

That the execution of a judgment awarding a peremptory writ of mandamus, may be suspended by a proper appeal bond is not an open question in this court. Griffin v. Wakelee, 42 Tex. 513. After the approval of such a bond, the district court, during the term, still has jurisdiction to modify or set aside the judgment appealed from, (Blum v. Wettermark, 58 Tex. 125; Garza v. Baker, 58 Tex. 487) but not to enforce such judgment. When the bond has been filed and approved, the complaining party has done, substantially, all required of him to give this court jurisdiction of the case, and this court may then, under the constitution, to protect or enforce its jurisdiction, issue writs of injunction, etc. But until the appeal bond is filed and approved, the case, in no sense, is in this court, and the supreme court has no authority to interfere with the proceedings of the district court. It may be error for that court, when notice of appeal has been given, to have its judgment, executed within less than twenty days, but it is no infringement of the jurisdiction of this court. The error may be revised only on. appeal. The extraordinary writs may only be used in cases of which this court has acquired jurisdiction. They cannot be used to set aside orders made, or to correct results transpired, before the appeal bond, was given, Wells v. Littlefield, 62 Tex. 30.

Since the appeal bond was approved in this case, nothing has been done in furtherance of the suspended judgment, and the answers of the respondents show that they have not done, or contemplated doing, anything to prejudice the appellate jurisdiction, or to justify the apprehensions set forth in the petition. If the writ of mandamus has not been returned not executed, the defendant in the judgment can have it recalled by a writ of supersedeas. R. S., art. 1406.

We think there is no occasion for an injunction, and the restraining order will be set aside, the application be refused, and the cause be dismissed at the cost of the applicants. It is so ordered.

Application Refused and Cause Dismissed.

[Opinion delivered January 29, 1886.]