Zapp v. Michaelis
| Decision Date | 07 February 1882 |
| Docket Number | Case No. 1441. |
| Citation | 56 Tex. 395 |
| Parties | ROBERT ZAPP v. THEO. MICHAELIS |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
The motion to dismiss, filed on the fifth day of the assignment, presents three objections to the appeal bond. 1st. It is claimed that the judgment is for the recovery of land, and that the bond should have been conditioned for the payment of cost. R. S., art. 1405.
2d. It is claimed that the bond is not properly conditioned, under art. 1404, in that it fails to bind appellant to perform the sentence, judgment and decree of the supreme court.
3d. The bond, it is said, fails to describe the judgment.
The judgment was, that plaintiff Michaelis recover of defendant Zapp a certain piece of land, and a designated sum of money and costs; also that certain streets be opened, and obstructions placed therein by Zapp, removed.
The bond describes the judgment correctly except that it does not mention the recovery of the land. It is conditioned that “said Robert Zapp will prosecute his appeal with effect, and in case the judgment of the supreme court shall be against him, that he will perform its judgment, pay all such damages as said court may award against him, and pay all costs which have accrued in the court below, or which may accrue in the supreme court in said cause.”
As the motion to dismiss was not filed until after the second day of the assignment, all defects in the appeal bond, other than such as defeat the jurisdiction of the court, must be regarded as waived. Rules 8 and 9.
The motion points out defects in the bond as one for supersedeas under articles 1404 and 1405 of the Revised Civil Statutes. Those defects would probably have been good ground for dismissing the appeal had the motion been filed in time. Where the judgment is for the recovery of land a supersedeas bond should be conditioned for the payment of the rent. Art. 1405. The judgment should be described in so far as it affects appellant, but need only be described in its general features, without descending into minute details, and certainly without copying the entire judgment. The omission of that part of the judgment which was for the recovery of land, however fatal to the appeal on motion filed in time to make defects of form available, does not affect the sufficiency of the bond to give jurisdiction. Defects of this nature have always been regarded as formal. The bond, to be unobjectionable in form, should follow closely the terms of the statute, and...
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...(Tex. Civ. App.) 48 S. W. 757; Woodhouse v. Cocke (Tex. Civ. App.) 39 S. W. 948; Howth v. Shumard (Tex. Civ. App.) 40 S. W. 1079; Zapp v. Michaelis, 56 Tex. 395; Milam County v. Robertson, 47 Tex. 222; Smith v. Alston, 40 Tex. It is not the purpose of this proceeding to have a judgment of t......
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Earl v. Mundy
...of the probate costs as fixed by him. The bond being in form of supersedeas covers all the elements of an appeal bond for costs. Zapp v. Michaelis, 56 Tex. 395. The judgment of the trial court admitted the will and codicil to probate and record as such. No judgment was rendered against appe......
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Clark v. Briley
...of the district court." To the same effect are Cason v. Laney, 82 Tex. 317, 18 S. W. 667, Saylor v. Marx, 56 Tex. 90, Zapp v. Michaelis, 56 Tex. 395, and Tynberg v. Cohen, 76 Tex. 409, 13 S. W. 315. All of which authorities settle the question beyond controversy, as we think, that the groun......
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Davis v. Estes
...60 Tex. 684. Errors in matters of description are held not jurisdictional; and are waived if not objected to in proper time. Zapp v. Michaelis, 56 Tex. 395. It also holds that defects in amount and number of sureties may be cured by the filing of a new bond. Shelton v. Wade, 4 Tex. 148; Hol......