Another v. Rector
| Decision Date | 01 January 1854 |
| Citation | 12 Tex. 99 |
| Parties | DIAL AND ANOTHER v. RECTOR. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
Where an appeal bond is executed after the death of the obligee, the bond is a nullity, and the appeal must be dismissed.
Whether the obligee in an appeal bond was dead at the time of the execution of the bond, will be tried in this court by affidavits. The affidavits were taken in this case before a notary, after notice to appellant. (Note 30.)
Appeal from Harrison. Motion to dismiss the appeal, on the ground that the obligee in the appeal bond was dead when the bond was executed. After notice to appellant, the affidavits of two witnesses, who proved the fact, were taken before a notary, and filed with the motion.
Lane, for appellants.
Wigfall & Hyde and Henderson & Jones, for appellee.
In this case a motion has been submitted to dismiss the appeal, on the ground that the appeal bond was made after the death of the obligees. It is clear that the bond so made is a nullity; and as, according to the decisions of this Court, an appeal bond is essential to the exercise of the jurisdiction of the Court, by appeal, the motion to dismiss must be sustained. A question of practice was made, as to how the fact of the death of the obligee, before the bond was made, shall be proven in this Court. We have no doubt that it is competent to show the fact by affidavit, as has been done in this case. See case of Harris v. Hopson, 5 Tex. R., 529.
Appeal dismissed.
NOTE 30.--Johnson v. Robeson, 27 T., 526. The Supreme Court cannot act upon a question of fact, such as the death of one of the parties previous to the judgment in the Court below, presented for decision, for the first time, in this Court by affidavit. The remedy of the party is in the District Court (Brown v. Torrey, 22 T., 54) by a direct proceeding for that purpose. (Thouvenin v. Rodrigues, 24 T., 468; Mills v. Alexander, 21 T., 154.)
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