Crumley v. M'Kinney

• Decision Date: 30 June 1888
• Citation: 9 S.W. 157
• Parties: CRUMLEY, Clerk, <I>et al.</I> <I>v.</I> McKINNEY <I>et al.</I>
• Court: Texas Supreme Court

9 S.W. 157

CRUMLEY, Clerk, et al.

v. McKINNEY et al.

Supreme Court of Texas.

June 30, 1888.

Appeal from district court, Hill county.

B. D. Tarlton, for appellant. McKinnon & Tarlton and J. G. Abney, for appellee.

STAYTON, C. J.

It appears that on March 12, 1887, John R. Nunn, Sr., and others recovered a judgment against William M. Nunn, Sr., for $7,140.66, with foreclosure of lien on 175 acres of land to secure its payment. The appellees, being claimants of the land on which the lien was established and foreclosed, were made parties to that suit, and the lien established and foreclosed as to them; but they were not personally liable for the sum adjudged against William M. Nunn, Sr. After that judgment was rendered the appellees gave notice of appeal, and executed a bond in the sum of $1,500, conditioned as required by article 1400, Rev. St., with the further conditions required by article 1405, which relates only to cases when the judgment is for the recovery of land or other property. The bond was not conditioned, however, as supersedeas bonds are required to be by article 1404, Rev. St. After that bond was approved and filed, the plaintiffs in that cause sued out an order of sale, as provided in the judgment, and were proceeding to have the land sold under it when this action was instituted against Crumley, the clerk of the court that issued the order to sell. The purpose of this action was to compel Crumley, as clerk of the district court, to issue a writ of supersedeas to the sheriff, who was about to execute the order of sale in his hands, and to prevent the sale of the land until the appeal then pending should be disposed of. No bond was given, but the plaintiffs proposed to give such bond as the judge to whom the petition was presented should require. No bond was required, but the judge, in chambers, directed that the clerk issue the writ prayed for, restraining the sheriff from proceeding further in the execution of the order of sale then in his hands until further orders from the judge. So far as the record shows this order was issued without notice to Crumley, or to any of the parties interested adversely to the plaintiffs in this cause. This occurred on June 27, 1887, and the writ issued as directed by the order of the judge. At the November term Crumley answered, and the parties plaintiff in the former suit made themselves parties. The character of the appeal-bond executed by the appellees was set out in their petition for mandamus. Crumley, and those who joined with him as defendants in this cause, asked the court to set aside the former order of the judge, and to annul all writs issued under it, on two grounds: First, because the bond was not such as entitled the parties to a supersedeas; second, because the mandamus was granted without notice or opportunity for hearing. The pleadings, judgment, and other proceedings had in the case, in which the appeal-bond was filed, including that bond, are found in a bill of exceptions, as is the evidence of the appellant Crumley, showing that he had no notice of the application until the mandamus had issued; but all this evidence was excluded, the court holding, from an inspection of the appeal-bond, that it was a supersedeas bond, and entitled the applicants to the relief sought by them. The court heard no evidence, but refused to give the defendants any relief. The judgment and appeal-bond should have been received in evidence, that the court might have before it means for determining certainly whether the appeal-bond was such as entitled the applicants to a supersedeas.

We will dispose of the case as though all the evidence offered had been received. The judgment was not one for the recovery of land or other property, but had it been, it is evident that the bond given would not have entitled the appellees in this case to have the judgment not enforced pending the appeal. A bond given under article 1400,¹ Rev. St., is simply a cost bond, and the addition...