Delivered October 17, 1894.
1. Appeal Bond from Justice to County Court — Joint Appellants. — There was a joint judgment in Justice Court against two parties defendant who jointly executed an appeal bond to the County Court; conditioned, however, that they would satisfy any judgment that might be there rendered against one of the parties, naming it, but omitting the name of the other in this connection. Held, that the bond was sufficient to effect the appeal.
2. Same — Waiver. — The appeal bond was sufficient as to one of the appellants, and if it should have been made payable also to the coappellant, this defect was waived by long delay in the County Court before motion to dismiss was made.
3. Same — Effect of Appeal. — Since the trial in the County Court is de novo, an appeal from a justice's judgment by any party to it does not merely suspend its execution, but its effect is to annul the judgment.
APPEAL from the County Court of Tarrant County. Tried below before Hon. ROBERT G. JOHNSON.
Stedman Thompson, for appellant the Missouri, Kansas Texas Railway Company. — The bond is properly signed by both defendants, and the failure of the bond in mentioning the Missouri, Kansas Texas Railway Company is a clerical error, and does not affect the validity of the same. Huly v. Huly, 1 W. W.C.C., sec. 157; Kerr v. Clegg, Id., sec. 791; Mills v. Hucket, Id., sec. 846; Sayles' Civ. Stats., art. 1639, notes 14, 15.
J.W. Terry and West Smith, for appellant the Gulf, Colorado Santa Fe Railway Company.
No brief for appellee reached the Reporter.
Appellee instituted this suit in the Justice Court against appellants, the Missouri, Kansas Texas Railway Company, and the Gulf, Colorado Santa Fe Railway Company, as joint tort-feasors, to recover damages growing out of the shipment of a lot of cattle which passed over the lines of both companies. On February 2, 1892, a joint judgment was rendered in the Justice Court in favor of appellee against both appellants, for the sum of $80, with interest and costs.
On February 9, 1892, the following appeal bond was filed and approved by the justice:
"L.A. MOSTY "v. "No. 1883. "M.K. T. RY. CO. ET AL.
"Whereas, L.A. Mosty, the plaintiff, recovered a judgment against the Missouri, Kansas Texas Railway Company, and the Gulf, Colorado Santa Fe Railway Company, the defendants in the above entitled and numbered cause, on the 2nd day of February, 1892, before A. G. McClung, Esq., a justice of the peace in and for precinct number 1, in the county of Tarrant, State of Texas, for the sum of $80, with interest thereon from said date at the rate of 6 per cent per annum, besides costs of suit, from which judgment the said Missouri, Kansas Texas Railway Company, and Gulf, Colorado Santa Fe Railway Company have appealed to the County Court of Tarrant County, State of Texas:
"Now, therefore, the said Gulf, Colorado Santa Fe Railway Company, as principal, and George W. Seibert and F.M. Gilbough, as sureties, acknowledge themselves bound to pay to the said L.A. Mosty the sum of $200, conditioned that the said Missouri, Kansas Texas Railway Company, and Gulf, Colorado Santa Fe Railway Company shall prosecute said appeal to effect, and shall pay off and satisfy the judgment which may be rendered against said Gulf, Colorado Santa Fe Railway Company on such appeal.
"Dated at Galveston, Texas, this 8th day of February, 1892.
"MISSOURI, KANSAS TEXAS RY. CO., "By FINCH THOMPSON, Attorneys; "THE GULF, COLORADO SANTA FE RY. CO., "BY J.W. TERRY, Solicitor for Texas; "GEORGE W. SEIBERT, "F.M. GILBOUGH."
The transcript from the Justice Court was filed in the County Court, February 15, 1892. On January 31, 1893, appellee moved in the County Court to quash the above bond, for the reason, "that said appeal bond is not conditioned as required by law, and does not bind the defendant to pay off and satisfy such judgment as may be rendered against the appellants, Missouri, Kansas Texas Railway Company, and Gulf, Colorado Santa Fe Railway Company, but only binds them to pay off and satisfy such judgment as may be rendered against the Gulf, Colorado Santa Fe Railway Company."
This motion was sustained, and the appeal dismissed as to both appellants. From this judgment of dismissal, this appeal is prosecuted.
We are of opinion the court erred in dismissing the appeal of the Gulf, Colorado Santa Fe Railway Company. We find no defect in the bond as to said appellant, unless it can be said that it should have been made payable to its coappellant. As to this we need not decide, as the point was not made in the motion upon which the court acted; but see Jordan v. Moore, 65 Tex. 364.
If, however, this objection had been made, we would be of opinion the defect, if such there was, was not jurisdictional in this case, and should have been treated as waived, by reason of the long time during which the appeal was pending in the County Court before any objection was interposed to the bond. Cason v. Laney, 82 Tex. 317; Zapp v. Michaelis, 56 Tex. 395; Cason v. Connor, 83 Tex. 26.
As to the Missouri, Kansas Texas Railway Company, we think the action of the court would have been proper had it been the only party against which the judgment was rendered. It will be observed, that neither the principal nor securities obligate themselves to satisfy the judgment which may be rendered against said last named company; and we think that, as to it, it can not be said any appeal bond has been given.
The appeal by the Gulf, Colorado Santa Fe, however, annulled the judgment appealed from as to both appellants. In the case of Moore v. Jordan, 65 Tex. 396, it is said: "The judgment rendered in the Justice Court was a joint judgment against David Jordan, Tamer Jordan, and the sureties on the replevin bond. An appeal from that judgment, by any party against whom it was rendered, annulled it. It was no longer a judgment which, in any event, would authorize an execution. This is believed to be the rule in all cases of joint judgments where, on appeal, the trial is de novo. Powell on App. Proc., 357, 373; Freem. on Judg., 328; Curtiss v. Beardsley, 15 Conn. 518; Bank v. Wheeler, 28 Conn. 433; Campbell v. Howard, 5 Mass. 378; Bender Bros. v. Lockett, 64 Tex. 566.
"The Constitution provides, that in all appeals from Justice Courts there shall be a trial de novo. An appeal from a judgment rendered in a Justice Court does not merely suspend its execution until the determination of the cause in the appellate court, as does an appeal from District Court to this Court, but its effect is to annual the judgment."
The judgment of the court below will be reversed, and the cause remanded.
Reversed and remanded.
STEPHENS, Associate Justice, did not sit in this case.