Janes v. Langham

Citations

• 29 Tex. 413

Syllabus

<p>The 136th section of the act to regulate proceedings in the district court reads as follows: “Any party taking an appeal shall, within twenty days after the term of the court at which the judgment or decree was rendered, enter into bond, with two or more sureties, to be approved by the clerk of the court, in double the amount of the debt or damages, or the value of the slaves or other personal property adjudged, conditioned for the prosecution of the appeal with effect, and performing the judgment, sentence, or decree of the supreme court, in case the decision of said court shall be against the appellant.” (Paschal’s Dig., Art. 1491, Note 583.) If the appeal bond be not in double- the amount of debt or damages, it is insufficient.</p> <p>The 138th section of the same act declares, that “In case the party be unable to give the appeal bond required, such party may nevertheless appeal, by giving security for no more than costs and damages of the appeal,” &c. (Paschal’s Dig., Art. 1493, Note 585.)</p> <p>Article 1491 binds the appellant, not only to prosecute his judgment to effect, but also to perform the judgment, sentence, or decree, of the supreme court, in case the decision of the supreme court shall be against him.</p> <p>Article 1493 binds the appellant to prosecute the appeal to effect, and to pay all such costs and damages as shall be adjudged against him in the supreme court. In this case the-appeal does not operate as a supersedeas. [This article prescribes no condition for the bond in words, as does the other.— Reporter.]</p> <p>Where a bond is sufficient, in penalty, under article 1493, but follows the condition of article 1491, the bond is bad.</p> <p>The fact that the condition is more onerous than is required by the statute invalidates the bond. This is not the case where the statute is followed, but the more onerous part is superadded.</p> <p>The reasoning leads to the conclusion, that the bond, under article 1493, ought to be in a penalty sufficient