Trammell v. Trammell

• Decision Date: 01 January 1855
• Citation: 15 Tex. 291
• Parties: TRAMMELL v. TRAMMELL ET AL.
• Court: Texas Supreme Court

15 Tex. 291

TRAMMELL

v.TRAMMELL ET AL.

Supreme Court of Texas.

1855.

Where the defendant, in a suit in which a sequestration was issued, replevied the property, and judgment was rendered against him and his sureties in the replevy bond, and the principal alone appealed, giving the sureties in the replevy bond as sureties also in the appeal bond, which was approved by the clerk, a motion to dismiss the appeal on the ground that the sureties in the replevy bond, against whom judgment was rendered, could not be sufficient sureties in the appeal bond, was overruled.

Appeal from Gonzales. Action by the appellees against the appellant for the recovery of certain slaves. Sequestration--delivery bond by the defendant; judgment for the plaintiffs against the defendant and his sureties. Appeal by the defendant alone, with the sureties in the delivery bond as sureties in the appeal bond, and one other. Approved by the clerk. Motion to dismiss the appeal on the ground that the appeal bond was insufficient, because the sureties in the delivery bond, against whom the judgment was also rendered, were sureties in the appeal bond, and there were not other sufficient sureties.

A. N. Mills, for appellant.

Shropshire and Tevis, for appellees.

WHEELER, J.

This is a motion to dismiss the appeal on the ground that there is no sufficient appeal bond, as required by the statute; and the question is, Has the appellant complied with the provision of the statute which requires the party appealing to give bond with two or more sureties, to be approved by the clerk? (Hart. Dig. art. 789.) It cannot be questioned that he has, unless the sureties in the bond for the forthcoming of the property are incapacitated by the judgment against them upon that bond from becoming sureties upon this appeal. It is to be observed that none but the principal, who alone is primarily liable, has appealed. And repeated decisions of this court have settled that his appeal is not the appeal of the sureties. They cannot assign errors upon his appeal; nor can he assign errors in the judgment against the sureties (Hendrick v. Cannon, 5 Tex. 248;Cheatham v. Riddle, 8 Id. 162, 166), although the reversal of the judgment as to the principal would operate, in a case like the present, to defeat that against the sureties, it being an alternative judgment, depending upon the judgment against the principal; yet, though the judgment be affirmed upon the appeal of the principal, it will not conclude the sureties, but they may still prosecute their writ of error within the time prescribed by law, and if the judgment be erroneous as to them, it will be in so far reversed. (Id.; Sartain v. Hamilton, 12 Id. 219.) Where judgment was...