Jenkins v. McNeese

34 Tex. 189

Opinion

Walker, J.

We think the motion to dismiss in this case is well taken. It does not appear from the certificate of the clerk that the record before us is a complete transcript of all the proceedings had in the case.

The certificate is not in accordance with the requirements of the law, article 1494,. Paschal’s Digest. Th|e appeal bond misdescribes the judgment.

Were we to determine the case on its merits, we can only look to the pleadings in the case, there being no statement of the facts which we can regard as such. (See 23 Texas, 65, Fulgham v. Bendy, and Birge v. Wanhop, Ib., 441.) The judgment of the district court, we think, is essentially correct.

The delivery bond was dated April 5, 1860, conditioned for the delivery of property on the third day of the same month and same year. (See Violand v. Saxel,¹ 33 Texas, 283.)

The writ required the defendants to appear at a time which had elapsed before it'was issued, and was therefore held to be void.

If the error was clerical merely, it might have been healed by proper allegation and proof, hut none such has been made.

"Where the creditor takes out execution against the principal in a judgment, and then waives it and causes it to be returned unsatisfied, the security is thereby discharged. (See Parker v. Nations, pamphlet copy, Galveston cases, 47; 33 Texas, 210.)

The judgment of the district court is affirmed.

Affirmed.

1 The syllabus in this case, as reported, misstates the decision of the court