| Tex. App. | Nov 17, 1897
On the 4th day of July, 1885, M.A. Lyons instituted a statutory proceeding for the trial of the rights of property as to sixty head of cattle upon which the sheriff of McCulloch County had levied an execution issued upon a judgment in favor of Leon H. Blum and against J.W. Lyons. On the same day, July 4, 1885, M.A. Lyons filed a claimant's bond in said proceeding, as required by the statute, upon which bond Tom Johnson, appellant in this case, was a surety.
The property levied on was valued at $500, and the proceeding to try the rights of the property was filed and docketed in the District Court of McCulloch County; and thereafter the following judgment was rendered in said proceeding:
"LEON H. BLUM } "No. 168. v. } District Court McCulloch County, Texas, "M.A. LYONS ET AL.} May 3, 1886.
"Now come the parties in the above entitled cause by their attorneys, and having agreed that the following judgment be inserted in this cause, to wit, that the plaintiffs have judgment against the defendants for the sum of three hundred and fifty-nine and 25-100 dollars; that said judgment bear no interest until December 5, 1886; that no execution issue until after said date. Therefore, it is ordered, adjudged, and decreed by the court that the plaintiffs, Leon H. Blum, do have and recover of and from the defendants, M.A. Lyons, J.W. Lyons, N.B. Johnson, and Tom Johnson, the sum of three hundred and fifty-nine and 29-100 dollars; that said judgment bear interest from and after December 5, 1886, at the rate of 10 per cent per annum, and that no execution shall issue in this case until December 5, 1886; that defendant pay the cost of this suit, for which let execution issue in behalf of the officers of this court for all costs in this case."
Appellant brought this suit to restrain the enforcement of said judgment, upon the ground that he was not present nor represented at the trial, and never agreed that such judgment might be entered against him.
Without considering all the assignments of error in detail, we will briefly state our conclusions in reference to the entire case.
When a person becomes a surety upon a statutory bond for the trial of the rights of property, he becomes a party to the litigation, and the court can render judgment against him without having him served with citation or otherwise notified. It is not claimed that Leon H. Blum, by fraud or otherwise, prevented appellant from attending court at the time *262 the judgment was rendered or from taking the steps to correct whatever errors may have been committed. In our opinion, the court had jurisdiction, both of the subject matter and of appellant, to render the judgment complained of. Therefore, said judgment is not absolutely void, and if it was erroneous, appellant's remedy was an appeal.
The testimony shows that the attorney who promised to release appellant from liability on the judgment had no authority to do so; and hence, he was not released, and has not excused himself for failing to avail himself of the remedy afforded by appeal.
No reversible error is disclosed, and the judgment will be affirmed.
Affirmed.
Writ of error refused.