Robertson v. Moorer

| Tex. | Jul 1, 1860

Bell, J.

We are of opinion that there is no error in the judgment of the court below for which it can be reversed. • The statute regulating the grant of writs of error provides that the writ of error shall not operate as a supersedeas unless the party who obtains-the writ shall execute bond in an amount equal to double the amount of the judgment, order or decree upon which the writ of error was obtained. The statute then prescribes what the condition of such bond shall be, and the section concludes with these words: “ which bond shall have the force and effect of a judgment against all the obligors, upon which execution may issue, in case of forfeiture.” The judge below instructed the jury that in the event of the forfeiture of this bond, it operated as a lien upon the land of the obligors, situated in the county where the original judgment was rendered, from the time of its execution. This is the effect of the judge’s charge to the jury. On the othqr hand, and in opposition to this view, it is contended that the writ of error bond" created no lien whatever upon the property of the obligors, but that the only effect of the bond upon the obligors is to subject their property to execution, hrthe event that the judgment of the District Court be affirmed by the Supreme Court. This proposition, it will be perceived, goes to the extent of denying that the judgment of this court against the plaintiff in error and the sureties on his bond given to obtain the writ of error, creates any lien upon the lands of the sureties in the bond. But it is also contended, that if the proposition just stated be not a true one, then the judgment of this, court, affirming the judgment of the District -Court, will only create a lien upon the lands of the plaintiff in error, in the county where this court sits when it renders its judgment.

We think it very clear that neither of these two propositions can ,})e maintained. It is true there are certain descriptions o£ bonds which have one of the áttributes of a judgment, but which are not judgments, in the full sense of that term. Such are bonds conditioned for the delivery on the day of sale, of personal property or slaves levied on by the sheriff. The law provides that execution shall issue against the principal and sureties on such bonds after the same shall have been returned to the clerk’s office, with a declaration of forfeiture. But in the case of bonds for writs of error, the law declares that they shall have the force and effect of judgments, in case of forfeiture. It is a part of the force-which belongs to a judgment, that it binds certain descriptions of property in a particular manner, tc satisfy its demands. In res.pect to the lien which the judgment creates upon property, the terms force and effect are equivalent expressions.-

The only question that can be made is, from what time does the lien which is created by the declaration of the forfeiture of the bond begin to date ? The judgment of this court affirming the judgment of the District Court, is the declaration of the forfeiture of the bond. Does the lien created by the forfeiture relate back to the time of the execution’ of the bond so as to attach to the property of the sureties in the bond from that time, or does the lien attach upon the rendition of "the judgment of this court, or does it attach at the time when the mandate of this court is filed in the office of the clerk of the District Court where the original judgment was rendered? These are the questions. And we incline to the opinion that was expressed by the judge who tried the cause below, that upon the forfeiture of the bond, the lien which springs out of it, relates back to the time of its execution, and binds the land of the surety in the county where the original-judgment was rendered, from that time. But we will reserve this point for further consideration when a case shall arise which demands its decision. It is enough for the the present case that the mandate of this court was filed in the office of the clerk of the District Court before the appellant acquired any claim to the land. This court pronounced its judgment affirming the judgment of the District Court, on the 24th of April, 1855. The mandate of this court issued on the 25th of April, 1855, and was filed in the office of the district clerk of Panola county, on the 2nd day of June, 1855. The appellant Robertson, and Samuel B. Lacy, received their bond for title from Albright,- on the 8th day of October, 1855. There can be no doubt that the lien created by the judgment of this court had attached upon the land in Panola county. It would be a very unreasonable rule of law that would confine the lien of judgments of this court to property situated in the county where the court was sitting when the judgment was rendered. The jurisdiction of this court is entirely appellate. It affirms the judgment of the court below. It does not even name the amount for which it renders its judgment, unless the particular aspect of the case makes it necessary to do so. The judgment is for the amount recovered in-the court below—and the court below is required to carry the judgment into effect. We are of opinion that the court below did not err in refusing the instruction asked by the counsel "for the defendants, and that there was no error in the rulings upon the admissibility of evidence. The judgment of the District Court is affirmed.

Judgment affirmed.