Johnson v. Robeson

• Court: Supreme Court of Texas
• Writing for the Court: MOORE
• Citation: 27 Tex. 526
• Decision Date: 01 January 1864
• Parties: WILLIAM R. JOHNSON v. JAMES ROBESON AND OTHERS.

27 Tex. 526

WILLIAM R. JOHNSON
v.
JAMES ROBESON AND OTHERS.

Supreme Court of Texas.

1864.

A bond in error made payable to two persons, plaintiffs below, one of whom was dead at the filing of the same, is a nullity, and gives no jurisdiction of the case on the writ of error to the supreme court.

The petition for writ of error must be filed and the bond given within two years from the rendition of the judgment to give jurisdiction to the supreme court.

After two years from the date of the judgment, the defects in an error bond, as above named, cannot be cured by executing a new bond to the proper parties.

ERROR from Liberty. Tried below before the Hon. James M. Maxcy.

On the 18th day of October, A. D. 1857, James Robeson and John S. Beale recovered a judgment of William R. Johnson for a half league of land. On the 7th day of March, A. D. 1859, William R. Johnson filed in the office of the clerk of the district court of Liberty county a petition for a writ of error, reciting the judgment and praying for citations to be issued for James Robeson and John S. Beale. On the same day he filed a bond, payable to James Robeson and John S. Beale. On the 2d day of November, A. D. 1859, William R. Johnson filed in the office of said clerk an amended petition for writ of error in the same case, setting out the filing of the original petition, and that since the filing of the same, petitioner had learned that John S. Beale had departed this life; that he died sometime after the rendition of said judgment; that there was no administration upon his estate; that Elizabeth A. Beale, his widow, and Lucy B., Kate W., and Susan L. Beale, his children, were his only heirs, and prayed for citations.

The defendants moved to dismiss the writ of error; because at the time of filing the original petition, and bond in error, John S. Beale, one of the persons named in the petition and bond, was dead; and filed an affidavit that John S. Beale died anterior to the 1st day of March, 1859; sometime in the spring of 1858.

[27 Tex. 527]

Ballinger & Jack, for plaintiffs in error.

C. L. Cleveland and S. A. Thompson, for defendants in error.

MOORE, J.

However great the hardship or apparent the injustice resulting therefrom, under the rules of practice and the law as settled by former decisions of this court, the writ of error in this case must be dismissed. The bond was unquestionably executed after the death of one of the parties to whom it is made payable, and it is clearly, therefore,...