Hicks v. Oliver

• Decision Date: 20 November 1888
• Citation: 10 S.W. 97
• Parties: HICKS <I>et al.</I> <I>v.</I> OLIVER.
• Court: Texas Supreme Court

10 S.W. 97

HICKS et al.v.

OLIVER.

Supreme Court of Texas.

November 20, 1888.

Appeal from district court, Rusk county; J. G. HAZELWOOD, Judge.

Mrs. E. J. Oliver, as administratrix, etc., of R. W. Oliver, was granted an order for the sale of decedent's realty, and also, as widow, an allowance in lieu of exempt property, and S. J. Hicks and others, devisees, appealed to the district court. Their appeal was dismissed, and from the judgment of dismissal they appeal to this court.

Drury Field, for appellants. W. J. Graham and Martin Casey, for appellee.

GAINES, J.

This is an appeal from a judgment of the district court of Rusk county, dismissing an appeal from the county court. The appellee, Mrs. E. J. Oliver, as administratrix with the will annexed of the estate of R. W. Oliver, deceased, filed an application in the latter court (in which the estate was being administered) for an order to sell a certain brick store-house and lot belonging to the estate. Appellants, as devisees under the will of the testator, resisted the application. The order was granted, and they gave notice of appeal to the district court. At the same term another order was granted, making an allowance to the administratrix, who was the widow of the deceased, in lieu of exempt property. The granting of this order was also resisted by appellants, and notice of appeal was given. The appellants, in order to perfect their appeal, gave bond in the sum of $2,500, conditioned as the law directs. The motion to dismiss the appeal was based upon alleged defects in the bond.

The first ground of objection to the bond was that it did not describe the judgment. This ground is not noticed in the brief of counsel, and it may be presumed that the court did not deem it sufficient. If, however, this objection was well taken, the judgment dismissing the appeal would have to stand. But we are of opinion that the bond is sufficient to identify the orders appealed from, and that further particularity was not required. The bond shows that the first order intended to be reviewed was an order for the sale of a brick store-house and lot, and we think no further description of the property was necessary.

The other ground of objection to the bond was that the obligors bound themselves in a fixed sum, namely, $2,500. The counsel for appellee insist in their brief that, because the statute does not provide that the bond shall be given in any sum, to be fixed either by the amount or value of the subject-matter of the controversy, or the probable amount of the costs, or by any officer, an obligation for a stated sum is not contemplated by the statute, and is therefore void. But we think the proposition cannot be maintained....