No. 2767 | Tex. | Mar 4, 1890
Appellee, on the 27th day of November, 1888, in cause No. 550, in the Justice Court of Precinct No. 1 of Wharton County, recovered a judgment against appellant for the sum of $58.50 and for costs of suit. On the 24th of December, 1888, appellant filed a bond, which was approved by the justice, for an appeal to the District Court. In describing the judgment in the bond, the number of the case, the style of the court, the names of the, parties, and the amount and effect of the judgment are accurately stated, but the date is given as the 1st of December instead of the 27th of November. Also the condition of the bond reads, “shall prosecute its appeal to effect or pay,” etc. On motion in the District Court the appeal was dismissed. The grounds of the motion were, (1) that the judgment was misdescribed, (2) that the condition was not such as the law requires, and (3) that the bond recites a judgment rendered on Sunday.
The second ground of objection was not well taken. The condition provided by our statute for an appeal bond from the District to the Supreme Court is very similar to that for appeal bonds from the Justice Courts, and it has long since been settled that the use of the word or instead of and in the condition of the former bond does not change its legal effect, and therefore does not render it void. Robinson v. Brinson, 20 Tex., 438" court="Tex." date_filed="1857-07-01" href="https://app.midpage.ai/document/robinson-v-brinson-4889047?utm_source=webapp" opinion_id="4889047">20 Texas, 438.
Neither does such a departure from the language of the statute change the effect of a bond for an appeal from a judgment in a Justice Court, and the same rule should be applied. That the rule does apply is expressly held by our Court of Appeals. Worley v. Hudson, 2 Wills. C. C., sec. 26.
The question of the effect of misrecital of the date is one of more difficulty. The date of a judgment is one of the most important features by which it can be identified. The same judgment can not have two dates. It is probably for this reason that we have not been able to find any decision in our reports in which it has been held that the misrecital of the date of the judgment in the appeal bond is fatal to the appeal. But it has
In Cochrane v. Day, 27 Tex., 385" court="Tex." date_filed="1864-07-01" href="https://app.midpage.ai/document/cochrane-v-day-4890142?utm_source=webapp" opinion_id="4890142">27 Texas, 385, in speaking of the description required in a petition in error, Judge Moore uses this language: “But it has been held that the petition or citation must describe the judgment with sufficient accuracy to notify the defendant with reasonable certainty what judgment it is proposed to revise.” We think this indicates the correct and reasonable rule as applied to appeal bonds. The object of the description in the bond is not only accurately to define the obligation of the sureties, but it is to show the court to which the appeal is taken that the required bond has been given in the identical case in which the judgment appealed from is rendered. There should be such definiteness and accuracy in the description that the identity can be made certain without resort to evidence dehors the record.
It seems to us, therefore, that although a discrepancy or misdescription may exist, this should not be held fatal to the bond, provided the judgment is so fully described in other respects as to identify it beyond any reasonable doubt. In this case we have the court, the names of the parties, the amount and effect of the judgment, all correctly stated, and in addition thereto the correct number of the case. It is possible that in the same court two judgments may have been rendered between the same parties, to the same effect, and for the same amount, even on the same day; but if the officer has done his duty in numbering his cases upon the docket it is impossible that there could be two with the same number. The date is not so determinate an element of description as the number of the ease. It is a false idea that there is any peculiar sanctity about the date of the judgment. Being relieved of this idea, we think there should be no difficulty in concluding that the misrecital of its date in an appeal bond should not necessarily be held fatal to it. Like any other misrecital, it should be disregarded, provided the other elements of the description show with reasonable certainty that it can be no other than the judgment appealed from. The rule “falsa demonstratio non vocet” applies in this as in other cases.
Whether the date of the judgment recited in the bond was Sunday or not we deem unimportant. The other recitals in the bond show that the judgment intended was the judgment of the 27th of ¡November, from which the appeal was taken.
We think the appeal bond was sufficient, and for the error of the court in dismissing the appeal on account of the objections thereto, the judgment is reversed and the cause remanded.
Reversed and remanded.
Delivered March 4, 1890.