Coman v. Lincoln

61 S.W. 443, 25 Tex. Civ. App. 276, 1901 Tex. App. LEXIS 416

• Court: Court of Appeals of Texas
• Decided: February 21, 1901
• Status: Published

Opinion

PLEASANTS, Associate Justice.

The appellee recovered a judgment in the Justice Court for precinct No. 1 of Harris County against the appellant for the sum $117.68. Appellant’s motion for a new trial having been overruled, she gave notice of appeal to the County Court ■of said county, and in due time filed her appeal bond as required by the statute. The condition of said bond is, “that the said Sadie Coman shall prosecute her appeal with effect, and in case the judgment of the County Court of Harris County, Texas, shall be against her, that she shall periorm its judgment, sentence or decree, and pay all such damages as said •court may award against her.” Appellee filed in said County Court a motion to dismiss said appeal because of the insufficiency of the appeal bond. The court below sustained said motion, and rendered a judgment ■dismissing the appeal, from which judgment this appeal is prosecuted.

The appeal bond, which was held insufficient by the court below, coniormed to all of the requirements of article 1670 of the Eevised Statutes, except that the condition of the bond was as before set out. We think that the condition of this bond, while not expressed in the exact language prescribed by said article 1670, is the same in legal effect as the condition prescribed in said article. When appellant and her sureties bound themselves to perform the judgment of the County Court in ■case said judgment should be against appellant, they thereby bound ■themselves to pay and satisfy such judgment, and in case the judgment of the County Court should be against appellant, said judgment could -also be rendered against the sureties on said bond. The condition of this bond is in the exact language prescribed by the statute for a supersedeas bond from the district or county court to the Court of Appeals, the very object and purpose of which is to authorize the appellate court, in case the judgment of the court below is affirmed, to render judgment •against the sureties upon said bond. The appeal bond from the Justice to the County Court being in substantial compliance with the statute, the court below erred in dismissing said appeal. If the obligation to pay damages rendered the condition of said bond more onerous than re•quired by law, such additional obligation may be treated as surplusage, and will not vitiate the bond. Lee v. Stone, 1 White & W. Con. Cas., sec. 1277; Trial v. Lepore, Id., see. 1275; Jones v. Langham, 29 Texas, 413; Landa v. Heerman, 85 Texas, 1.

The judgment of the court below will be reversed and this cause remanded for a new trial, and it is so ordered.

Reversed and remanded.