Reid v. Fernandez

52 Tex. 379 | Tex. | 1880

Moore, Chief Justice.

The embarrassment occasioned by the different conditions presented in our former statutes, upon which judgments of the District Court might be brought by appeal and writ of error to this court, has been the subject of frequent comment. It was the evident purpose of the Revised Statutes to simplify the law regarding this matter, and relieve parties desiring to remove cases to this court from doubt and uncertainty as to the character of bond they are required to give for this purpose.

By the law in force when this judgment was rendered, if bond is required for the removal of it to this court for review, the party desiring to do this is required to give either a bond for cost or a supersedeas bond. The condition of the first is, that appellant or plaintiff in error, as the case may be, “shall prosecute bis appeal or writ of error with effect, and shall pay all costs which have accrued in the court below, or which may accrue in the appellate court while the condition of the second is, that the appellant or plaintiff in error “ shall prosecute his appeal or writ of error with effect; and in case the judgment of the appellate court shall be against him, that he shall perform its judgment, sentence, or decree, and pay all such damages as said court may award against him.”

The bond given in this case manifestly does not conform to the statutory requirements of either a cost or supersedeas bond. If intended as a bond for cost, it is clearly defective in not binding the obligors for the payment of all the costs which have accrued in the court below, or which may accrue in the appellate court; and if it was intended as a supersedeas bond, it is defective for the omission of the stipulation to “pay all such damages as ” the appellate court “ may award against ” the appellant. (Rev. Stats., ch. 19, arts. 1400-1404.) It is no answer to this objection to the bond, for the omission of this condition, to say that the payment of damages awarded by the Supreme Court is virtually included in the obligation to perform the judgment, sentence, or decree of the court, should the same be against the appellant. Both conditions are required by the statute to perfect the appeal, and it is not for the court to say that they are unnecessary.

. When the conditions of a statutory bond are clearly and definitely stated in the statute, wTe think the bond, if it does not literally follow the statute, must fully and clearly embrace all the conditions prescribed by it. If parties will not take the trouble of examining the statute when they are required to execute such bonds, and conform to its requirements, they must attribute their failure to secure the relief which they might be entitled to by giving the proper bond, to their negligence or over-confidence in themselves.

[Opinion delivered January 9, 1880.]

We do not make these observations because they are supposed to have any special reference to this case. The bond here in question conforms to the requirements of a supersedeas appeal bond under the former statute. (Paschal’s Dig., art. 1491.) The defect in it is, no doubt, to be attributed to the fact that the change in the conditions of a supersedeas bond made by the Revised Statutes was not generally known to the profession at the time this bond was executed. The purpose of our observations is to impress upon parties required to give such bonds the necessity, in all instances, of examining the statute under which they are given before executing them, and to indicate to the profession that bonds for the removal of cases into this court having been so greatly simplified, we shall, in future, require a more strict observance of the statutory requirements than has possibly, in some instances, been heretofore deemed absolutely essential.

Dismissed.