Horton v. Bodine

19 Tex. 280 | Tex. | 1857

Hemphill, Ch. J.

The appellee moves to dismiss the appeal in this case, on several grounds; the first and most important of which is misdescription of the judgment in the appeal bond.' The bond describes the judgment as one rendered in favor of appellee and against appellants, for the sum of four hundred and thirty-five dollars ; whereas the judgment in fact is, that the appellee recover of the appellants the possession of a tract of land and costs of suit; and, also, that the appellee recover of the appellant A. Horton, one hundred and five dollars as damages; of R. H. Cartwright, another appellant, thirty dollars ; and of Martha R. Wood six hundred dollars, the damages assessed. Before the motion for new trial was disposed of, the appellee remitted three hundred dollars of the damages recovered against Martha R. Wood. The discrepancy between the judgment as recited, and as it existed, is striking.

The only point of similarity is, that the aggregate of the several judgments against the parties separately, for the particular amount of damages recovered against each defendant, amounts, on deducting the sum remitted, to four hundred and thirty-five dollars, the sum specified in the bond as having been recovered against all the defendants. But this is not sufficient to identify the judgment. Its description, however accurate, of the several amounts assessed as damages against the defendants separately, would not have been sufficient, without specifying the principal judgment, viz : for the recovery of the land. (10 Tex. R. 277 ; 12 Id. 37.) Upon this ground the motion must be sustained.

This cause was placed on docket at the last Term of this Court, when a suggestion was made of the death of Richard H. Cartwright, one of the appellants. His administrator appeared at this time and made himself party appellant. When subsequently, there was a motion on behalf of appellee to dismiss the appeal, it was stated that no appearance had been entered for the appellee at the previous Term, and that the name of her attorney was placed on the docket through mistake. We do not deem it necessary to examine our various decisions, to ascertain the rulings as to the time at which motions to dismiss an appeal, for defect in the appeal bond, shall be made. But for the future, the rule of practice shall be, that the motion shall be made at the return Term of the appeal, provided the cause be docketed at or before the time allotted for the trial of appeals from the District.

Causes may be brought up by writ of error, without bond; and if a bond which is absolutely void be given, this will be no ground for dismissal of the writ. Both modes of the appellate process should be harmonized as much as possible, and an appellee cannot complain when allowed a Term to object to the defects of the bond on appeal, when, if it were a writ of error, he would not be heard on such objection.

The question whether the appeal should now be dismissed for the defect of the bond—one of the parties being now an administrator, and who, as such, is not required, on appeal, to give any bond—is not free from doubt. But the subject has not been discussed, and as the parties may still bring up the cause by writ of error, if they be so advised, we do not deem it necessary to examine and decide, under the circumstances, the point that has been suggested.

We are of opinion that the appeal bond is defective in that it misdescribed the judgment, and the appeal is therefore ordered to be dismissed.

Appeal dismissed.

Roberts, J., did not sit in this case.