Janes v. Langham , 29 Tex. 413 ( 1867 )

Coke, J.

In this case a preliminary question arises on a motion to dismiss the appeal. Several grounds are assigned in support of the motion. It will be necessary for us to consider only one of them. It is objected that the appeal bond is not in conformity with the statute regulating the manner in which appeals from the judgment of a district court shall be taken. We think the objection is well founded. The judgment is for $27,379 60, besides ■costs, and the bond is in the penal sum of $5,100. In this particular the appeal bond is manifestly insufficient under Art. 549, O. & W. Dig., which requires that the bond" shall be in double the amount of the debt or damages adjudged against the party taking the appeal. [Paschal’s Dig., Art. 1491, Note 583.]

Nor is the appeal bond in this case in conformity with Art. 551, O. & W. Dig., the only other clause of the statute prescribing the mode of perfecting an appeal. Under this section, a party unable to give the bond in double the amount of the debt or damages, as provided in article 549, may, nevertheless, appeal, by giving security for no more than the costs and damages of the appeal. [Paschal’s Dig., Art. 1493, Note 585.]

The condition of an appeal bond, under article 549, binds the appellant not only to prosecute his appeal 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. An appeal bond, under article 551, 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, and in this case the appeal does not operate as a supersedeas. The condition of the bond in this case is in exact conformity to the requirements of article 549, but the hond is bad under that article, as we have seen, because insufficient in amount. The amount of the bond would have been ample under article 551, but the condition of the bond does not conform to the requirements of this section. It is, therefore, insufficient under either clause of the statute.

It is insisted, by the appellant’s counsel, in argument, that the obligation in the bond, to perform the judgment, decree, or sentence, of the Supreme Court, includes the requirements of article 551, to secure the costs and damages of the appeal, and more, and that the appellee cannot, therefore, complain. We are of opinion, that the fact of the hond being more onerous than is required by the statute is by no means an argument in favor of its sufficiency.

On the contrary, as a general rule, it is believed to be well settled, that when the condition or covenants of a statutory bond are more onerous than are required hy law, such a departure from the statute invalidates the bond. Such is not the case when that which is prescribed is distinctly stated in the bond, but more, not necessary, is super-added, because the unnecessary addition may be rejected as surplusage, retaining that which is properly set out, and which makes the bond a good one. If the obligation of the bond in this case had been to pay all such costs and damages as shall be adjudged against the appellant in the Supreme Court, and to perform the judgment, sentence, or decree, &e., the latter clause could have been rejected as surplusage, and the bond in this respect would have been good under article 551, because the covenant to secure the costs and damages', being distinctly set out, is capable of being distinguished and separated from the unnecessary surplusage accompanying it. But the condition or covenants of the bond here are not divisible; it is an entirety. Ho part of it can be rejected. The whole must be taken together. The appellee is entitled, when his judgment is appealed from, to be secured by a bond which conforms substantially to the requirements of the statute, and which is consequently not liable to defenses of any character when it is sought to be enforced. And this is not such a bond. (James et al. v. Reynolds’ Administrator, 2 Tex., 256.)

It is said by counsel in argument that this bond was given under article 551, and not intended as a supersedeas bond, but simply to recover costs and damages. We see an affidavit in the record, filed five days after the bond was filed, in which the appellant makes oath of his inability to give a bond in double the amount of the debt, and avers that he has already filed a bond to secure the costs and damages of appeal. It is hardly necessary to say that this affidavit is not properly a part of the record, and should not have been embodied in the transcript, and of course cannot be considered here. Ho such affidavit of the appellant’s inability to give a supersedeas bond is necessary. A recital of that fact in the bond would have been sufficient, and the proper mode of showing the fact, and of designating the character of the bond. In Doss v. Griswold, 1 Tex., 101, it was held by this court, and we think with entire correctness, that an appeal bond, made under article 551, to secure only the costs and damages of appeal, should show its character within itself and on its face. This is not shown in the bond in this case. In no light in which it can be viewed is the appeal bond in this case su - ficient.

Because the appeal has not been perfected by a proper appeal bond, the motion to dismiss the appeal will be sustained.

Ordered accordingly.