Horton v. Bodine

• Decision Date: 01 January 1857
• Parties: ALEXANDER HORTON AND OTHERS v. NANCY BODINE.
• Court: Texas Supreme Court

19 Tex. 280

ALEXANDER HORTON AND OTHERS

v.NANCY BODINE.

Supreme Court of Texas.

1857.

Where the plaintiff, in an action of trespass to try title, recovers judgment for the land, and also for damages, and the appeal bond merely describes the judgment as a judgment for so much money--the amount of the damages recovered--the appeal will be dismissed, on motion at the proper time, for misdescription of the judgment in the appeal bond.

Where there is judgment against several, for different amounts against each, quære, whether it would be sufficient, in the appeal bond, to describe the judgment as against all for the aggregate amount?

The rule of practice in the supreme court is, that motions to dismiss an appeal, for defect in the appeal bond, shall be made at the return term of the appeal, provided the cause be docketed at or before the time allotted for the trial of appeals from the district.

Causes may be brought up by writ of error, previous to act of 1858, which requires a bond for costs, without bond; and if a bond, which is absolutely void, be given, this will be no ground for dismissal of the suit.

Where several defendants joined in an appeal, giving an appeal bond which misdescribed the judgment; and before motion to dismiss the appeal was sustained, one of the appellants died and his administrator became a party, the court expressed a doubt whether the appeal should be dismissed as to the administrator, of whom the law does not require an appeal bond; but, as the question had not been discussed, and it was not too late to prosecute a writ of error, the appeal was dismissed.

Appeal from San Augustine. Trespass to try title by appellee, Nancy Bodine, against appellants, Alexander Horton, Martha R. Wood, William Harrell, Sen., and Richard H. Cartwright.

The verdict of the jury was as follows: “We, the jury, find for plaintiff, and assess her damages against Alexander Horton to be one hundred and five dollars; against Richard Cartwright to be thirty dollars; against Mrs. Martha Wood to be six hundred dollars; this October 22, A. D. 1855.” The judgment entered same day, after reciting the verdict, continued as follows: It is therefore ordered, adjudged and decreed by the court, that the said plaintiff, Nancy Bodine, have and recover of the said defendants, Alexander Horton, Martha R. Wood, William Harrell, Sen., and Richard H. Cartwright, the possession of the said tract of land and described by her in her petition;” that a writ issue to put her in possession, etc. The entry then further adjudged to plaintiff, in separate paragraphs, the damages assessed by the jury against each of three of the defendants. Final paragraph against all of the defendants for the costs. October 24, 1855, plaintiff entered remittitur of $300 of the damages assessed against Martha R. Wood.

All of the defendants joined in the appeal and appeal bond. The appeal bond was in the sum of $870; and the description of the judgment was as follows: “The condition of the above bond is such that, whereas, the above bounden Alexander Horton, Martha R. Wood, William Harrell and Richard H. Cartwright have prayed an appeal to the supreme court, from a judgment rendered against them by our San Augustine county district court, in favor of Nancy Bodine, for the sum of four hundred and thirty-five dollars, and have obtained the same returnable,” etc. The bond was not entitled of the cause.

The transcript was filed May 19, 1856; the cause docketed to that term; and opposite to the name of the appellee was written the name of her counsel, on the docket from which the court calls cases for hearing, and upon which memoranda of proceedings are made by the court. It is the practice of the court thus to enter the name of counsel on said docket, as the cases are called. The death of Richard H. Cartwright having been suggested, the cause was continued.

At the next term, 1857, appellee's counsel filed a motion to dismiss, on the ground of misdescription of the judgment by the appeal bond; and suggested orally to the court, that the entry of their names on the docket at the previous term was made by mistake. In the meantime, the administrator of Cartwright made himself a party.

Henderson & Jones, for motion to dismiss, cited Hart. Dig. art. 790; 4 Tex. 287;10 Id. 277;12 Id....