Estado Land & Cattle Co. v. Ansley

• Decision Date: 10 January 1894
• Citation: 24 S.W. 933
• Parties: ESTADO LAND & CATTLE CO. et al. v. ANSLEY.
• Court: Texas Court of Appeals

24 S.W. 933

ESTADO LAND & CATTLE CO. et al. v. ANSLEY.

Court of Civil Appeals of Texas.

January 10, 1894.

Appeal from district court, Brewster county; Winchester Kelso, Judge.

Action by George Ansley against the Estado Land & Cattle Company and others to recover on an appeal bond. From a judgment for plaintiff, defendants appeal. Reversed.

Z. E. Combs and W. B. Gano, for appellants. W. W. Turney and T. W. Gregory, for appellee.

JAMES, C. J.

The following are our conclusions from the facts: George Ansley, on September 15, 1890, obtained a judgment against appellants for $347.60, besides interest, in the county court of Brewster county. There was notice of appeal entered upon the judge's docket, but none upon the minutes of the court. On September 30, 1890, defendants filed a supersedeas appeal bond, which was approved. The appeals of that term should have been filed in the court of appeals at the May assignment, 1891. The record was never filed. It appears on December 20, 1890, and afterwards, up to April 18, 1891, the attorneys for the defendant, by correspondence, endeavored to have the clerk obtain the entry of the notice of appeal nunc pro tunc, which, however, was never done; also, that, at the adjournment of the term at which the judgment was recovered, defendant's counsel directed the clerk to prepare the transcript, and on April 16, 1891, he sent it to defendant's counsel, and they returned it, saying that they were no longer in the case. A few days afterwards the clerk received a letter from another attorney, requesting that the transcript be sent to him, which was done the latter part of April, 1891. The clerk issued execution on the judgment on June 4, 1891, having learned that the transcript had not been filed in the court of appeals. On June 19, 1891, defendant sued out a writ of error, with supersedeas, and the execution was returned. There is nothing to show what was the fate of the writ of error. This suit was filed July 20, 1891, in the district court of Brewster county, against the defendant and its sureties on the supersedeas appeal bond, for failure to perform the conditions thereof, praying judgment in the sum of $800, the penalty of such bond, with interest and costs. The cause was tried without a jury, and judgment was rendered against appellant for $347.60, with 6 per cent. interest per annum, from the date of judgment, (September 11, 1891,) and for costs.

Conclusions of Law.

There being no assignments of error in the record, our attention can be directed only to such as are fundamental in their nature. The appeal, with reference to which the bond sued on was given, was not perfected, owing to the fact that the notice of appeal was not entered of record. Rev. St. art. 1387; Messner v. Lewis, 17 Tex. 520. In view of this, was the bond an obligation upon which a recovery could be had? Where an appeal from a money judgment is prosecuted, but not successfully, the jurisdiction exists in the appellate court to render judgment on the bond. Generally speaking, where a person is entitled to redress by reason of a breach of the conditions of such a bond, he may assert his rights in an ordinary suit. Blair v. Sanborn, 82 Tex. 688, 18 S. W. 159; Trent v. Rhomberg, 66 Tex. 249, 18 S. W. 510. An instance of this class would be where an appeal once perfected had been abandoned, and no affirmance on certificate obtained, or, if filed in the appellate...