Chambers v. Wife

Decision Date01 January 1851
Citation7 Tex. 75
PartiesCHAMBERS v. MILLER AND WIFE.
CourtTexas Supreme Court
OPINION TEXT STARTS HERE

An appeal bond conditioned that “if said appellant should sustain his appeal and prosecute it with effect, then this obligation shall be void, and otherwise it shall remain in full force and effect,” is not in conformity with the statute.

Where the bond given on appeal is not drawn in conformity with the statute, and the appellant fails to file the transcript, the appellee cannot obtain an affirmance of the judgment without reference to the merits. (Note 14.)

Where an appeal bond is not drawn in conformity with the statute, the appeal does not supersede the issue of execution on the judgment.

Appeal from Bastrop. The appellant having failed to file the transcript within the time prescribed by law, the appellees moved the court to affirm the judgment without reference to the merits. The appeal bond was conditioned that “if said appellant should sustain his appeal and prosecute it with effect, then this obligation shall be void, and otherwise it shall remain in full force and effect.”

Poage and Duval, for appellees.

LIPSCOMB, J.

In this case the transcript of the record not having been filed by the appellant, the appellees have moved for an affirmance of the judgment of the court below, under the provisions of art. 2938, Hart. Dig. On an inspection of the certified copy of the appeal bond, it is found not to be in conformity with the provisions of the statute in such cases made and provided, neither as a bond to supersede an execution nor for the costs and damages. (See arts. 791, 793, Hart. Dig.)

The bond certified by the clerk is conditioned, “if said appellant should sustain his appeal and prosecute it with effect, then this obligation shall be void, and otherwise it shall remain in full force and effect.”

As a statutory bond, it may be considered a nullity in disposing of the motion before us. (1 Tex. R., 101.) It could not operate as a supersedeas to the issuance of an execution; nor could it in any way interpose an impediment to the appellees in enforcing satisfaction of their judgment. The motion must therefore be refused.

Motion overruled.

NOTE 14.--Janes v. Langham, 29 T., 413; Thompson v. Pine, 41 T., 171.

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3 cases
  • Keel & Son v. Gribble-Carter Grain Co.
    • United States
    • Texas Court of Appeals
    • December 29, 1911
    ...of the judgment appealed from, and the parties interested might have proceeded in the proper manner to collect their money. Chambers v. Miller, 7 Tex. 75. If that be correct, then the defendants in error cannot claim that their judgment was superseded till this writ of error was sued out. S......
  • Holloway v. Holloway
    • United States
    • Texas Supreme Court
    • April 30, 1867
    ...supersedeas, nor writ of error annuls or impairs the judgment. Their sole effect is to suspend the execution of the judgment (Chambers v. Miller, 7 Tex. 75) pending its re-examination in the appellate court; and a judgment of affirmance neither satisfies, merges nor extinguishes the judgmen......
  • Tarde v. Benseman
    • United States
    • Texas Supreme Court
    • October 31, 1868
    ...for the purpose of testing whether, admitting the case made by the petition to be true, the plaintiff had a good case in law. Chambers v. Miller and Wife, 7 Tex. 75.E. B. Turner, Attorney General, for the appellee. I. Qui tam action, instituted by appellee, assessor and collector of Medina ......

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