Aber v. Warden

49 Tex. 377

• Court: Texas Supreme Court
• Decided: July 1, 1878
• Status: Published

Opinion

Gould, Associate Justice.

Appellant was one of several sureties on a forfeited bail bond, against whom judgment final had been entered up in the District Court of Montague county. Execution issued, and was levied on appellant’s property, and he sued out of said court an injunction restraining the sale, alleging that he had paid all the costs, except the sheriff’s and county attorney’s commissions, and had tendered the full amount of the execution in valid county scrip of the county. It appears, from an agreed statement, that the officer who made the levy claimed that the commissions of the county attorney and sheriff were payable in United States currency. The District Court, on the hearing, dissolved the injunction, holding that the statute authorizing payment of bail bonds in county scrip does not apply to the commissions of the officers named. From the judgment dissolving the injunction and dismissing the case, an appeal was taken to this court.

Our opinion is, that the appeal should have been to the Court of Appeals. It has been held by this court, after full argument and on mature consideration, that appeals in forfeited bail-bond cases are to be taken to the Court of Appeals, and not to this court. The enforcement of such bonds was regarded as incidental to the criminal case in which they are given, and our opinion is, that the question presented in this ■ case is too closely connected with the judgment on the bail bond to be separable from it. Indeed, the amount involved being less than four hundred dollars, the District Court would not have had jurisdiction but for the fact that the subject-matter of the suit was connected with, and incidental to, a judgment or proceeding in that court. The question is really as to the construction and legal effect of that judgment and the process issued thereon, and is one which might have been presented to the District Court by a mere motion in the principal case, instead of resorting to a separate suit. If such a motion had been made, the action of the court thereon would be revisable only in the same court in which the judgment itself would be revised, to wit, the Court of Appeals. The mere fact that an injunction was found necessary to protect the appellant, cannot operate to give this court jurisdiction. The proceeding is still, in substance, no more than a motion in a bail-bond case, calling on the District Court to construe its judgment and to regulate the enforcement of its process.

As this court has no jurisdiction of the case, it must be dismissed.

Dismissed.