Cruger v. McCracken

• Decision Date: 03 October 1894
• Citation: 30 S.W. 373
• Parties: CRUGER v. McCRACKEN.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

30 S.W. 373

CRUGER v. McCRACKEN.¹

Court of Civil Appeals of Texas.

October 3, 1894.

Appeal from district court, Bexar county; W. W. King, Judge.

Action by R. H. McCracken against J. P. Cruger. On appeal to the court of civil appeals, judgment was entered against Amy N. Cruger, a surety on the supersedeas bond, and she moves to vacate it. Motion denied.

Simpson & James and Solon Stewart, for appellant. Upson & Bergstrom, for appellee.

NEILL, J.

On the 1st day of December, 1892, R. H. McCracken recovered judgment in the Forty-Fifth judicial district against J. P. Cruger for $12,033.14, with interest from its date at the rate of 8 per cent. per annum, from which J. P. Cruger gave notice of appeal, and executed his supersedeas bond, conditioned as required by law, with Amy N. Cruger, J. V. Dignowity, A. D. Bell, and C. L. Dignowity as sureties, which bond was filed and approved by the district clerk, and copied in the transcript of the record of the cause filed in this court on appeal. On April 18, 1894, the judgment of the district court was affirmed here (26 S. W. 282), and rendered against the appellant and the sureties on his said bond, as required by section 37 of the act of April 13 (Called Sess. 22d Leg.). From this judgment of affirmance, J. P. Cruger applied to our supreme court for a writ of error, which was refused on May 21, 1894, and judgment there entered against him and the sureties on his bonds for the costs incurred on said application. This motion is by Amy N. Cruger to set aside the judgment rendered in this court against her, as a surety on said bond. She alleges, as the grounds of her motion, that this court had no jurisdiction to render the judgment against her, and that it is void, because it is not for any debt or liability incurred by her, or on behalf of herself, her children, or her separate property; that neither she nor her separate property is liable on the debt for which the judgment was rendered; that the debt was not contracted by herself, or by her authority, for necessaries furnished herself or children, and was not incurred by her, or by her authority, for the benefit of her separate property, and that she is not, and never has been, liable for said debt, or any part thereof; that at the time she signed the bond, and the judgment was rendered against her, she was a married woman, and had been long previous thereto married to appellant, J. P. Cruger, with whom she was then living, and had lived from the date of their marriage up to the time of filing this motion; and that she did not acknowledge, and has never acknowledged, the execution of the bond before any officer or other person authorized to take and certify the separate acknowledgments of married women. The...