Ledbetter v. Adelia Burns. J. R. Burns

• Decision Date: 01 January 1874
• Citation: 42 Tex. 508
• Parties: W. H. LEDBETTER v. J. R. AND ADELIA BURNS. J. R. BURNS AND WIFE v. W. H. LEDBETTER.
• Court: Texas Supreme Court

42 Tex. 508

W. H. LEDBETTER

v.J. R. AND ADELIA BURNS.

J. R. BURNS AND WIFE

v.W. H. LEDBETTER.

Supreme Court of Texas.

1874.

APPEAL from Fayette. Tried below before the Hon. I. B. McFarland.

L. W. Moore & J. C. Brown and Hancock, West & North, for Ledbetter.

J. R. Burns and R. H. Phelps, for Burns and wife.

GOULD, J.

On July 1, 1873, W. H. Ledbetter brought suit against J. R. Burns and wife Adelia, to try title to certain lots in the town of La Grange, at the same time suing out a writ of sequestration, under which he, in due time, obtained possession of the lots by giving a replevin bond. Defendants, besides the plea of not guilty and special pleas attacking plaintiff's title, alleged that the writ of sequestration had issued wrongfully and oppressively; that they had been forcibly dispossessed and subjected to great mortification and inconvenience, for which they claimed one thousand dollars damages, besides rent, at the rate of twenty-five dollars per month. The result of the trial in November, 1873, was a verdict for defendants, assessing the damages at one hundred and twenty-five dollars. Each party moved for a new trial, the defendants claiming that they were entitled to a larger amount as damages; and these motions being overruled, each party also prosecuted an appeal.

The plaintiff claimed title under a sheriff's sale and deed made under an order of sale issued on a judgment and decree of foreclosure in the case of Doxey's Administrator v. J. R. and Adelia Burns, and their securities, McGown and White. That judgment was rendered by the District Court of Fayette county on April 30, 1873, against J. R. Burns and the sureties, for the sum of three thousand three hundred and fifty-three dollars, and the decree was against Adelia Burns for the foreclosure, the record reciting that no moneyed judgment was taken against her, because she was a married woman. The defendants in that case gave notice of appeal, and in due time filed a bond in the amount of two hundred dollars, which recites as follows:

“Whereas said defendants, being unable to give the official bond required, give this bond for security of the cost and damages of said appeal, in conformity with Article 138 of the District Court Act,” etc., and proceeds: “Now, therefore, if the said appellants shall prosecute their said appeal with effect, and pay all costs and damages of the appeal, in case the decision of the Supreme Court shall be against said appellants, then,” etc.

This bond was filed and approved by the clerk on June 3, 1873, and, it is claimed by defendants, operated to suspend the execution of the decree by the sale of property. The plaintiffs in that case, however, on the 6th of June sued out an order of sale, under which the lots in controversy in this case were, on July 1, sold and bought by Ledbetter, attorney for Doxey's administrators in the original suit, plaintiff in this case. Whether this was a valid sale, whether an appeal perfected under the section of the District Court Act referred to in the bond (Paschal's Digest, Article 1443), operated to prevent the execution of the judgment and decree appealed from by sale of property, and whether the bond given by defendants in the original case is to be regarded as a compliance with Article 1493, Paschal's Digest, are the questions affecting Ledbetter's title.

An ordinary appeal bond is in double the amount of the judgment, and secures the performance of the decree of the Supreme Court. (Paschal's Digest, Article 1491.) When the judgment is for the recovery of lands, it is made to operate a lien thereon; and, in that case, the appeal bond is only for costs and damages of appeal. (Paschal's Digest, Article 1492.) In both cases, the appeal being perfected, further proceedings to enforce the judgment are suspended. The next section allows a party who is unable to give the appeal bond required, to perfect his appeal by giving security for no more than costs and damages of appeal, and proceeds: “But, in that case, the judgment of the court below shall operate as a lien upon all the property of the appellant, and the sheriff shall take possession of his personal property, and keep possession of the same or so much thereof as will be sufficient to satisfy the judgment of the appellate court during the pendency of the appeal,” unless the appellant executes a forthcoming bond.

We think that the object of this section was to suspend the enforcement of the judgment appealed from, allowing, however, the judgment-creditor to sue out...