Reeves, Associate Justice.
On the twenty-fourth of January, 1873, appellee applied to the District Court of Houston county to amend a judgment rendered by said court in his favor against R. R. Russell, and which, as he alleges in his motion, should have been entered against appellants, Clinton Allen and James A. Corley, but that their names were omitted in the entry of judgment by the clerk through mistake. The suit was originally instituted in the court of a justice of the peace, by appellee against R. R. Russell and the appellants, Allen and Corley, on their promissory note, payable to appellee, where judgment was obtained against Miller, from which he appealed to the District Court. On the first trial in the District Court judgment was rendered for Miller against all the defendants by their names. On the [497]*497second trial the jury returned a verdict for Miller, as the jury did on former trial, and the judgment was entered up against Russell only. This judgment was rendered at the August term, 1872, of the District Court. At the March term, 1873, the court amended the judgment as prayed for, so as to include Allen and Corley by their names. As amended, the judgment was rendered for plaintiff, S. A. Miller, trustee, against the defendants, R. R. Russell, Clinton Allen and James A. Corley; to which appellants excepted, and gave notice of an appeal, and assigned for error—
“1. The court erred in overruling exceptions of defendants to motion of plaintiff.
“ 2. The court erred in sustaining plaintiff’s exceptions to defendants’ answer.
“3. The court erred in deciding upon the issues without the intervention of a jury.
“4. The court erred in undertaking to render a judgment against these defendants when two courts had elapsed before such application was made.
“5, The court erred in assuming to correct a judgment rendered at a former term of the court in manner and form as done.
“6. The court erred in undertaking to render judgment against these defendants ás on motion to correct judgment, when these defendants’ names are not mentioned in the verdict of the jury nor in the charge of the court on which the verdict was written.
“7. The court erred in not hearing the evidence on the defendants’ pleas, and in excluding the same.
“8. The court erred in assuming that the verdict of the jury was intended by the jury as against these defendants, when there was no paper or record in the cause that could be certainly identified as showing such to have been the intention of the jury,-' and therefore such attempted correction of judgment is contrary to law.
[498]*498“ 9. For these and other errors apparent on the face of the record, defendants seek a reversal.”
Before the assignment of errors is examined it will be necessary to dispose of. a preliminary question arising on appellee’s motion to dismiss the appeal. The ground of the motion is that the judgment of the District Court in cases appealed from justice’s court is final and without appeal to this court. In support of the motion he refers to the act “to organize the courts of justices of the peace and county courts, and to define their jurisdiction and duties,” of August 13, 1870.
The 12th Section of the act provides that “in all cases Where an appeal shall be taken from a justice’s court to the District Court it shall be the duty of the justice from whom such appeal shall be taken immediately to make out a transcript of all the entries made on Ms docket in such case, and file the same, together with all the original papers of the cause, with the clerk of the District Court, on or before the first day of the term of such court next after such appeal was taken. All causes appealed from a justice’s court shall be tried de novo, and such trial shall be final, without appeal to the Supreme Court.” (Paschal’s Digest, Articles 6348-9.)
It is not necessary to examine this question in all the phases in which it might be presented, but so far only as to determine whether the statute takes away the right of appeal to this court from the District Court, in a proceeding to amend its judgment, in a case appealed from a justice’s court to the District Court under the act of 1870 above referred to.
The District Court has appellate jurisdiction in cases originating in justice’s court under the regulations prescribed by the act of 1870.
The 11th Section of the act (Article 6343, Paschal’s Digest) provides that notice of the appeal must be given in open court, with bond and security, within the time and [499]*499conditioned as required by the act. The cause thus brought to the District Court is tried de now, and the trial is final, without appeal to the Supreme Court.
The plaintiff in the judgment alleges that he did not discover the mistake till after the expiration of the term at which the judgment was rendered. The motion sets out the facts, alleges the mistake in the judgment, and prays that it be corrected.
The defendants, after service of the citation, appeared and answered, and the amendment was made by the court after a hearing as in other cases between litigants when contesting their rights on petition and answer.
The court had authority to amend the judgment under the act of May 11, 1846, “to organize the District Courts and to define their powers and jurisdiction.” (Paschal’s Digest, Articles 49, 51.) This statute applies to all judgments rendered by the District Court which may be defective on any of the grounds mentioned in the statute.
Though the court has authority to amend its judgment in proper cases, the power cannot be exercised in such manner as would deprive the defendants of any substantial rights which may have accrued to them after the trial on appeal, and independent of it. In such cases the action of the court is subject to revision by this court, as in other judgments. Defendants complain that this has been done.
It remains to inquire whether the court erred in permitting this judgment to be amended on any of the grounds assigned as error.
It is believed that the allegations of the motion are sufficient for the amendment, if the correction was proper on other grounds.
It is objected that the motion came too late, not being presented at the term of the court when the judgment was rendered, nor at the succeeding term.
The cases heretofore decided by this court fully sustain [500]*500the action of the court in making the amendment on the question of time. The amendments have been allowed after the lapse of a greater period of "time than in the present case. (Ramsay v. McCauley, 9 Texas, 106.)
If application had been made for a jury, and the court had refused it, the refusal would have been error; but it does not so appear by the record.
It is further objected that the court "erred in rendering judgment against Allen and Corley, when their names were not mentioned in the verdict of the jury nor "in the charge of the court.
It appears that appellants were parties to the suit in the justice’s court. The judgment in that court was rendered in favor of "all the defendants, naming them; the bond for costs in the justice’s court and the appeal bond given for the removal of the case to the District Court were made payable to the defendants by their names.
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Reeves, Associate Justice.
On the twenty-fourth of January, 1873, appellee applied to the District Court of Houston county to amend a judgment rendered by said court in his favor against R. R. Russell, and which, as he alleges in his motion, should have been entered against appellants, Clinton Allen and James A. Corley, but that their names were omitted in the entry of judgment by the clerk through mistake. The suit was originally instituted in the court of a justice of the peace, by appellee against R. R. Russell and the appellants, Allen and Corley, on their promissory note, payable to appellee, where judgment was obtained against Miller, from which he appealed to the District Court. On the first trial in the District Court judgment was rendered for Miller against all the defendants by their names. On the [497]*497second trial the jury returned a verdict for Miller, as the jury did on former trial, and the judgment was entered up against Russell only. This judgment was rendered at the August term, 1872, of the District Court. At the March term, 1873, the court amended the judgment as prayed for, so as to include Allen and Corley by their names. As amended, the judgment was rendered for plaintiff, S. A. Miller, trustee, against the defendants, R. R. Russell, Clinton Allen and James A. Corley; to which appellants excepted, and gave notice of an appeal, and assigned for error—
“1. The court erred in overruling exceptions of defendants to motion of plaintiff.
“ 2. The court erred in sustaining plaintiff’s exceptions to defendants’ answer.
“3. The court erred in deciding upon the issues without the intervention of a jury.
“4. The court erred in undertaking to render a judgment against these defendants when two courts had elapsed before such application was made.
“5, The court erred in assuming to correct a judgment rendered at a former term of the court in manner and form as done.
“6. The court erred in undertaking to render judgment against these defendants ás on motion to correct judgment, when these defendants’ names are not mentioned in the verdict of the jury nor in the charge of the court on which the verdict was written.
“7. The court erred in not hearing the evidence on the defendants’ pleas, and in excluding the same.
“8. The court erred in assuming that the verdict of the jury was intended by the jury as against these defendants, when there was no paper or record in the cause that could be certainly identified as showing such to have been the intention of the jury,-' and therefore such attempted correction of judgment is contrary to law.
[498]*498“ 9. For these and other errors apparent on the face of the record, defendants seek a reversal.”
Before the assignment of errors is examined it will be necessary to dispose of. a preliminary question arising on appellee’s motion to dismiss the appeal. The ground of the motion is that the judgment of the District Court in cases appealed from justice’s court is final and without appeal to this court. In support of the motion he refers to the act “to organize the courts of justices of the peace and county courts, and to define their jurisdiction and duties,” of August 13, 1870.
The 12th Section of the act provides that “in all cases Where an appeal shall be taken from a justice’s court to the District Court it shall be the duty of the justice from whom such appeal shall be taken immediately to make out a transcript of all the entries made on Ms docket in such case, and file the same, together with all the original papers of the cause, with the clerk of the District Court, on or before the first day of the term of such court next after such appeal was taken. All causes appealed from a justice’s court shall be tried de novo, and such trial shall be final, without appeal to the Supreme Court.” (Paschal’s Digest, Articles 6348-9.)
It is not necessary to examine this question in all the phases in which it might be presented, but so far only as to determine whether the statute takes away the right of appeal to this court from the District Court, in a proceeding to amend its judgment, in a case appealed from a justice’s court to the District Court under the act of 1870 above referred to.
The District Court has appellate jurisdiction in cases originating in justice’s court under the regulations prescribed by the act of 1870.
The 11th Section of the act (Article 6343, Paschal’s Digest) provides that notice of the appeal must be given in open court, with bond and security, within the time and [499]*499conditioned as required by the act. The cause thus brought to the District Court is tried de now, and the trial is final, without appeal to the Supreme Court.
The plaintiff in the judgment alleges that he did not discover the mistake till after the expiration of the term at which the judgment was rendered. The motion sets out the facts, alleges the mistake in the judgment, and prays that it be corrected.
The defendants, after service of the citation, appeared and answered, and the amendment was made by the court after a hearing as in other cases between litigants when contesting their rights on petition and answer.
The court had authority to amend the judgment under the act of May 11, 1846, “to organize the District Courts and to define their powers and jurisdiction.” (Paschal’s Digest, Articles 49, 51.) This statute applies to all judgments rendered by the District Court which may be defective on any of the grounds mentioned in the statute.
Though the court has authority to amend its judgment in proper cases, the power cannot be exercised in such manner as would deprive the defendants of any substantial rights which may have accrued to them after the trial on appeal, and independent of it. In such cases the action of the court is subject to revision by this court, as in other judgments. Defendants complain that this has been done.
It remains to inquire whether the court erred in permitting this judgment to be amended on any of the grounds assigned as error.
It is believed that the allegations of the motion are sufficient for the amendment, if the correction was proper on other grounds.
It is objected that the motion came too late, not being presented at the term of the court when the judgment was rendered, nor at the succeeding term.
The cases heretofore decided by this court fully sustain [500]*500the action of the court in making the amendment on the question of time. The amendments have been allowed after the lapse of a greater period of "time than in the present case. (Ramsay v. McCauley, 9 Texas, 106.)
If application had been made for a jury, and the court had refused it, the refusal would have been error; but it does not so appear by the record.
It is further objected that the court "erred in rendering judgment against Allen and Corley, when their names were not mentioned in the verdict of the jury nor "in the charge of the court.
It appears that appellants were parties to the suit in the justice’s court. The judgment in that court was rendered in favor of "all the defendants, naming them; the bond for costs in the justice’s court and the appeal bond given for the removal of the case to the District Court were made payable to the defendants by their names. The first judgment of the District Court for Miller was against all the defendants, and the names of the appellants are there given. The motion for a new trial founded on Russell’s affidavit recites that it was made by the defendants, and that Allen and Corley were Russell’s securities. The motion for a new trial on the second judgment in the District Court appears to have been made for and in behalf of the defendants. The record does not show that the case was dismissed as to these parties, but where their names are not mentioned.the description and reference to them as defendants is inconsistent with the conclusion that the defendant, Russell, alone was intended by the jury in finding their verdict.
- We think- it clear, from the facts disclosed by the record, that the omission to render judgment against the appellants was such a mistake as should have been corrected by the court. It was such a mistake as comes within the provision of the statute, and the correction was in accordance with Article 51 of the act. The power [501]*501to amend the1 judgment where the names of one or more of defendants are omitted in the entry of judgment by mistake of the clerk cannot be doubted under the authority of Trammell et al. v. Trammell et al., 25 Texas Sup., 261.
There is no statement of facts, bill of exception, or ruling of the court indicating what action, if any, was taken on appellants’ evidence in support of their pleas. The record being silent in this respect, the ruling, whatever it may have been, cannot be revised.
The question of suretyship, with a view of having execution first against the principal, is not presented by the assignment of errors, but the answer alleges that the securities were discharged from the payment of the debt by reason of the plaintiff’s neglect to enforce payment by execution against the principal.
It is well settled that time given to the principal debtor does not discharge the sureties without a binding agreement to give time. (Burke v. Cruger, 8 Texas, 66; Cruger v. Burke, 11 Texas, 694; Payne v. Powell, 14 Texas, 601.) .
Affirmed.
Associate Justice Gould appointed, May 5, 1874.