Young v. Russell , 1884 Tex. LEXIS 29 ( 1884 )

Walker, P. J. Com. App.

The appeal in this case does not bring the plaintiffs before this court because the appeal bond does not conform to the conditions of the law which are required to confer jurisdiction over them for the revision of the judgment rendered in their favor against the appellant. The plaintiffs recovered by the judgmenfc appealed from one-half of two of the tracts of land sued for and a portion of another of the lands involved in this suit, and the defendant recovered the remainder, and if the judgment thus rendered be reversed on this appeal, the interest of the plaintiffs must be affected to the extent of setting aside wholly the judgment as-an entirety, thereby requiring the plaintiffs again to prosecute their suit in the court below. The plaintiffs were otherwise interested in the matter of costs, which had been so adjudged as to exempt them from liability therefor, except on condition that two-thirds of the same could not be successfully enforced against the husband of the appellant.

In order to confer jurisdiction on the appellate court as to a party to the judgment who is interested in its results, it seems that the appeal bond must be made payable to such party, even though the judgment were not in favor of such party, provided the interest of „the appellant in the suit was adverse to such party. In Greenwade v. Smith, 57 Tex., 195, an appeal bond was executed by an appellant whose petition of intervention was dismissed as insufficient, and was made payable only to the party in whose favor a judgment below was rendered on a promissory note and foreclosing a vendor’s lien. It was held that the defendant below, against whom the judgment was rendered, was a necessary party to the appeal, and the appeal bond should have been made payable to him as wmll as to the plaintiff. Chief Justice Gould remarked in the opinion: “ Whilst the object of the interveners is to reverse the judgment dismissing the plea of intervention, they can only appeal from the final judgment, and as Garrett (the defendant against whom judgment had been rendered) is a party to that judgment, whose interests may be materially affected should it fie reversed, he was a necessary party to the appeal. The bond should have been payable to him as well as to Smith (the plaintiff in the judgment). The necessary parties not having been brought before the court to enable it to take jurisdiction of the case, the appeal must be dismissed.”

In this case the attitude of the plaintiffs is that of hostility to the interest of Russell and of the appellant Alice Young, as well as to that of her husband, W. P. Young; the position of Alice Young in this litigation, whilst her answer admits the material facts alleged by plaintiffs, so far as they may be essential to effect-a recovery against Russell, does not imply a relinquishment or waiver of her rights to such interest as she may have in the property. The scope of her answer admitted virtually that the plaintiffs were entitled to one-half of the land sued for, and that she was interested as owner of the residue. Russell’s interest was wholly adverse to that of all the parties to the suit. Such being the status of the case when the judgment was rendered, no reason is perceived why the appellant may be exempted from making her appeal bond payable to the plaintiffs.

Art. 1400, R. S., provides that the appeal bond shall be made “ payable to the appellee or defendant in error.” In a suit, and under pleadings of the character here presented, which is a proceeding in equity, the appellee must be regarded as the party in the judgment in whose favor the same has been wholly or partially rendered, and who does not appeal from it; and we are of opinion that to such party or parties in such judgment the appeal bond must be made payable.

Jurisdiction of an appeal will not be entertained without such an appeal bond as affords to the parties whom the law contemplates shall be protected by it, such security as the 'statute provides shall be afforded. See Smith & Williams v. Parks, 55 Tex., 85, and authorities there cited. Yo appearance is made nor briefs filed by the plaintiffs nor by appellee Russell, nor is there filed a motion to dismiss this appeal; but if it appear, by the record that the court does not possess jurisdiction, it will not attempt to exercise it, and in such case this court will, of its own motion, dismiss the appeal. Smith & Williams v. Parks, supra; Lyell v. Guadalupe Co., 28 Tex., 57; Loftin v. Nalley, 28 Tex., 127; Chambers v. Miller, 7 Tex., 75; Evans v. Pigg, 28 Tex., 590. See, also, Thompson v. Pine, 55 Tex., 429, where the writ of error was dismissed because one of two defendants in the judgment were not cited under the plaintiff in error’s writ of error. Judge Quinan, delivering the opinion, said: “We are of the opinion that the writ of error should be dismissed because Pine is not made a party, and this, too, whether the sureties have the right to make the motion or not. We know of no reason why Pine should not be cited. The object of the writ is to reform a judgment to which he is a party. All the parties defendant in error should be cited.” Citing authorities.

The principle, reason and policy of the law in appeals seems to apply alike to the same end, whether the question of jurisdiction arise in the consideration of the appeal bond, or of the process wher.eby the necessary and proper parties to the judgment are to be brought before the appellate court. In either case the court will decline to take jurisdiction to revise a judgment rendered below, unless the proper parties to be affected by the revision shall be brought before it in the mode which the statutes regulating appeals contemplate.

We conclude, therefore, that this appeal ought to be dismissed.

Dismissed.

[Opinion adopted January 28, 1884.]