15 Tex. 291 | Tex. | 1855
This is a motion to dismiss the appeal, on the ground that there is no sufficient appeal bond, as required by the Statute; and the question is, has the appellant complied with the provision of the Statute, which requires the party appealing to give bond with two or more sureties, to be approved by the Clerk. (Hart. Dig. Art. 189.) It cannot be questioned that he has, unless the sureties in the bond for the forthcoming of the property, are incapacitated by the judgment against them upon that bond, from becoming sureties upon this appeal. It is to be observed that none but the principal, who alone is primarily liable, has appealed. And repeated decisions of this Court have settled that his appeal is not the appeal of the sureties. They cannot assign errors upon his appeal ; nor can he assign errors in the judgment against the sureties, (Hendrick v. Cannon, 5 Tex. R. 248 ; Cheatham v. Riddle, 8 Id. R. 162, 166,) although the reversal of the judgment as to the principal would operate, in a case like the present, to defeat that against the sureties, it being an alternative judgment, depending upon the judgment against the principal; yet, though the judgment be affirmed upon the appeal of the principal, it will not conclude the sureties, but they may still prosecute their writ of error within the time prescribed by law, and if the judgment be erroneous as to them, it will be, in so far, reversed. (Id. ; Sartine v. Hamilton, 12 Id. 219.) Where judgment was affirmed on the appeal of the principal, and af
Motion overruled.