Jordan v. Moore

65 Tex. 363 | Tex. | 1886

Stayton, Associate Justice.

The petition for a writ of man-The damns to compel the county judge to transfer the cause to the district court, alleged that the wives of the appellee and the county judge were sisters. It further showed that the cause of action, which the appellee was seeking to enforce, pertained to the community estate of him and his wife.

His wife was not nominally a party to the action, but she was so in legal effect. The husband, as the representative of the community, under the statute, may alone sue for and collect any claim due to the community, and a judgment in his favor, or against him, will bind the wife, as to such estate, as fully as could she be bound were she a party to the action, unless in cases in which the right of a wife is recognized for her own protection, to assert claim' to community property.

The fact that the community may be indebted, and that the sum to be recovered might be applied to the satisfaction of such debts, cannot affect the character of the fund to be recovered, or change the character or extent of the wife’s interest in it. She is, in legal effect, a party to the action, and to her the county judge is so related by affinity as to disqualify him to try the cause. Const., art. 5, sec. 11; R. S., 1138.

The court below, therefore, did not err in overruling the exceptions to the petition for mandamus. If the relationship between the wives of the appellee and the county judge is not such as alleged, or if the fund sought to be recovered would not be community property, these facts may be shown and no disqualification of the county judge would then exist. The appeal bond sufficiently describes the judgment. It gives the names of the parties, the number of the cause, the court in which rendered, and the day on which it was rendered, against whom,' and what for.

It purports to be the bond of one of the defendants, who alone prosecutes the appeal, and is signed by him and his sureties. It does not specify the aggregate amount of the debt and interest for which the judgment was rendered, but it states that it was for “ the sum of $35.00, interest and costs.” This was not a misdescription. It is conditioned in the very words of the statute, but contains the following additional words, “ and will pay off and satisfy all costs that have accrued in the court below, together with all costs in the county court.”

Such is the relation of these words to those which precede them and constitute the condition prescribed by the words of the statute, that they must be construed to mean that the obligors bind themselves to do these things in case judgment be rendered against the principal in the bond. Those very things the sureties or their principal would be bound to do under the condition to the bond prescribed by the statute, should judgment go against the principal. The added words neither add to, nor take from, the bond any obligation which would exist had they not been inserted.

The court erred in quashing the appeal bond, and, for this reason, the judgment will be reversed and the cause remanded.

Reversed and Remanded.

[Opinion delivered January 26, 1886.]