Oliver v. Lone Star Cotton Jammers' & L. Ass'n

• Decision Date: 11 March 1911
• Citation: Oliver v. Lone Star Cotton Jammers' & L. Ass'n, 136 S.W. 508 (Tex. App. 1911)
• Parties: OLIVER et al. v. LONE STAR COTTON JAMMERS' & LONGSHOREMEN'S ASS'N.
• Court: Texas Court of Appeals

136 S.W. 508

OLIVER et al. v.LONE STAR COTTON JAMMERS' & LONGSHOREMEN'S ASS'N.

Court of Civil Appeals of Texas.

March 11, 1911.

Appeal from Galveston County Court; Geo. E. Mann, Judge.

Action by the Lone Star Cotton Jammers' & Longshoremen's Association against P. B. Oliver and another.From a judgment of the county court dismissing defendants' appeal from a justice's judgment, they appeal.Reversed and remanded.

W. F. Kelly and Jos. Cuney, for appellants.James B. & Charles J. Stubbs, for appellee.

PLEASANTS, C. J.

This suit was instituted in the justice court for precinct No. 1 of Galveston county.The trial in that court resulted in a judgment in favor of appellee against appellants and the sureties on their replevy bond (a distress warrant having been sued out by plaintiff, appellee herein, and levied upon a stock of goods belonging to defendants, appellants herein, and which was replevied by appellants) for the sum of $175.

In due time appellants filed the following appeal bond which was approved by the justice, and the transcript of the case sent up and filed in the county court of Galveston county: "The Lone Star Longshoremen's Cotton Jammers' Ass'n of Texas v. P. B. Oliver and W. H. Young. No. ____. In Justice Court, PrecinctNo. 1, of Galveston County, Texas.October Term, 1909.Know all men by these presents that whereas on the 19th day of October, A.D. 1909, the Lone Star Longshoremen and Cotton Jammers' Association of Texas, a corporation, recovered before R. H. Barry, a justice of the peace, in and for PrecinctNo. 1 of Galveston county, Texas, against the defendants, P. B. Oliver and W. H. Young, a judgment for the sum of $175.00 and costs of suit, from which judgment said defendants have appealed to the county court of said county.Now therefore, we the said P. B. Oliver and W. H. Young, as principals, and ____ and ____ as sureties, acknowledge ourselves bound to pay to the said Lone Star Cotton Jammers' & Longshoremen's Association of Texas, the sum of $400.00, conditioned that if the said P. B. Oliver and W. H. Young will well and truly prosecute the appeal to effect and pay off the judgment that may be rendered against them on this appeal, then this obligation is to become void, otherwise to remain in full force.Witness our hands this the 28th day of October, A.D. 1909. P. B. Oliver.W. H. Young.J. J. Norton.John Rigg, Jr.Joseph Cuney."

When the cause was called for trial in the county court, appellee presented the following motion to dismiss the appeal: "Lone Star Cotton Jammers' & Longshoremen's Association of Texas v. P. B. Oliver and W. H. Young. No. 10,252. In County Court of Galveston County.Jan. Term, A.D. 1910.Now comes the plaintiff in the above numbered and entitled cause and moves the court to dismiss the appeal from the lower court for the following reasons: (1) The appeal bond is not as required by statute.(a) The name of the plaintiff, as described in the appeal bond, and in the style of the cause and in the body of the bond, is different from plaintiff's name, as contained in the judgment of the court below and in plaintiff's pleadings.(b) The number of the cause tried in the justice court is #26569 and the appeal bond is numbered and filed in cause #26441.(c) The appeal bond does not correctly describe the judgment, the parties to the judgment, and the judgment of the lower court is against P. B. Oliver, W. H. Young, J. J. Norton and Will Westtrop, but the judgment described in the appeal bond is only against P. B. Oliver and W. H. Young.(d) The appeal bond does not include all parties to the judgment in the lower court and is not made payable to any party to the judgment in the lower court.(2) It does not appear that notice of appeal was given in the lower court.(3) The sureties on the bond, John Rigg, Jr., and Joseph Cuney, have nothing subject to execution and the alleged appeal bond is without two good and sufficient securities, as required by law.Wherefore, plaintiff moves the court to dismiss this appeal for want of jurisdiction."

Appellants thereupon asked leave to amend their appeal bond.This request was refused, and the motion of appellee to dismiss the appeal was sustained, and the appeal dismissed.Appellants excepted to this order and gave notice of appeal.The order dismissing the appeal was made on January 28, 1910.On February 4, 1910, during the term of court at which the order of dismissal was made, appellants presented the following motion for reinstatement of the appeal: "Now comes the defendantsP. B. Oliver and W. H. Young, in the above styled and numbered cause, and moves the court to set aside the order heretofore entered in this cause dismissing the appeal on account of certain alleged defects in the appeal bond, as shown by the motion of the plaintiff filed herein, and to allow the appellants to amend such bond by filing a good and sufficient appeal bond, conditioned as required by law, which is tendered herewith, and prays that the court reinstate said cause on the docket of this court, that the same may be tried according to law."The appeal bond accompanying this motion was in proper form and contained none of the defects of the original bond, but it does not appear to have been approved by the justice.The sureties were the same as those upon the original, and no objection appears to have been made to this bond on the ground that it had not been approved by the justice.Upon the hearing of the motion to reinstate, the trial court made the following order: "This day came on to be heard the motion of the defendants filed herein this date to set aside the order heretofore entered on January 29th dismissing their appeal and allow defendants to amend their appeal bond, and to reinstate said cause on the docket of this court.And, the court having heard...