Testard v. Neilson

| Tex. | Jul 1, 1857

Roberts, J.

A judgment was rendered in the District Court in favor of defendants in error against plaintiff in error. An execution was issued, a levy made, and a replevy bond taken, and forfeited, and an execution issued against the obligors in the replevy-bond. By writ of error Testard brings the case into this Court, and all his assignments of error relate to discrepancies between the replevy bond and the first execution.

The object of the proceeding seems to be, to treat this bond as a judgment, and have it revised and vacated, on account of a variance from the execution, in the names of the plaintiffs below, and in the amount due.

It presents the question, Is this bond, when returned forfeited, such a judgment as this Court can revise upon a writ of error ?

The statute says “ the Clerks of the several District Courts shall grant writs of error upon any final judgment order or decree, rendered in their Court, upon petition of any party interested.” (Art. 793, Hart. Dig.)

This is certainly not a final judgment, order or decree, rendered in the District Court.

The statute does not declare that such a bond, when forfeited, shall be a judgment or shall have the force or effect of a judgment ; although it authorizes execution to be issued against the principal and sureties for the amount of the debt and’cost. (Art. 1331, Hart. Dig.) It may be said to stand as a judgment, for one purpose, and that alone; to serve as a basis upon which a ministerial officer is required to do an official act, to wit: issue an execution.

But admitting that the statute had expressly given it the force and effect of a judgment, the law furnishes a party, aggrieved by any error, a more direct and immediate remedy by motion in the District Court. (Hart. Dig. Art. 2394.) If also it became necessary, he might bring to his aid the writ of injunction, as auxiliary to his remedy by motion. (Harris v. Shackleford, Sampson & Co., 2 Tex. R. 133.) It is expressly provided in this remedy by motion, that the obligors may present and try every issue of law or fact, that would have availed them in a regular- suit upon the bond.

From this it is obvious, that the parties’ rights had not been settled and precluded, either by an adjudication or anything that could stand in the place of an adjudication; and therefore the forfeited bond was not a final judgment, nor did it operate as one, from which an appeal or writ of error would be entertained by this Court. No authorities have been cited by the parties upon this point, and from the limited examination we have been able to give it, we are of opinion that there is no error presented of which this Court can take notice; and that the judgment below should be affirmed.

Judgment affirmed.