E. Eppstein & Co. v. Holmes & Crain

Citations

• 64 Tex. 560

Syllabus

<p>1. Appeal — Writ of error — Supersedeas.— A party perfected an appeal and gave a cost bond merely; he afterwards prosecuted a writ of error under a supersedeas writ of error bond, returnable to the same term of the supreme court as the appeal.* Held:</p> <p>(1) That under our statute a party is allowed to take either an appeal or a writ of error, and if at the term of the court at which the judgment is given he elects to prosecute an appeal and fails to perfect it, he may within the period of statutory limitation prosecute a writ of error. If his appeal is dismissed by the supreme court, or otherwise disposed of without a determination of the case, he may ordinarily prosecute his writ of error within the proper time.</p> <p>(3) That article 1400, Bevised Statutes, provides for an appeal or writ of error on giving cost bond, which does not suspend execution in the lower court; article 1404, Bevised Statutes, provides for appeal or writ of error with supersedeas bond, which article 1406 provides shall suspend proceedings below; the statute does not prescribe that the adoption of one of these modes shall exclude the other.</p> <p>(3) That a party cannot use both methods for mere delay (following Perez v. Garza, 53 Tex., 571, and Thomas v. Thomas, 57 Tex., 516); but both appeal and writ of error may be prosecuted by a party acting in good faith and in subservience to the intent of the various statutes.</p> <p>(4) That the constitution guarantiés the right of appeal, and it is a matter of right (following Republic v. Smith, Dallam, 407). The intent of the law is to afford every facility for appeal that is consistent with the rights of the opposite party. (Shelton v. Wade, 4 Tex., 148.)</p> <p>(5) That it is not in derogation of this intent to allow a supersedeas writ of error to be prosecuted by a party who has appealed, provided it does not delay the opposite party.</p> <p>(6) That all the plaintiffs and interveners in the original suit should have been made parties