Lockart v. Lytle , 36 Tex. 188 ( 1872 )

Ogden, J.

The motion to dismiss the appeal in this case, must be sustained for the reason of the irregularity and insufficiency of the bond in almost every particular. In the first place, the appellant has forced William Lytle into the suit, and the judgment of the court is in his favor, but his name is not mentioned in the bond. The judgment is for the appellee and against appellant, for eighteen thousand dollars worth of stock cattle, horses, and sheep, and also for several sums of money, specie, and currency, for five or six thousand dollars, for the division of stock, and the appointment of commissioners to divide the property. The appeal bond describes a judgment in favor of Samuel Lytle for the sum of two thousand one hundred and eighty-four dollars and forty cents. This certainly is by no means a description of the judgment attempted to be appealed from; and it is only by the number, and by the argument and brief of counsel, that we have been enabled to identify the judgment appealed from as the one described in the bond.

Again, the amount of the bond is wholly insufficient, it being for a little over six thousand dollars, and the amount of the judgment against the appellant and in favor of the appellee Sam. Lytle is about twenty-five thousand dollars. We might have permitted an additional bond to be filed, to cover that amount, had the bond been in other respects in conformity with the law and the decisions of this court; but the almost .total want of a correct description of the judgment renders the bond wholly insufficient. Appellant claims that the appeal is only taken for the amount stated in the bond, viz., two thousand one hundred and eighty-four dollars and forty cents; but we are reminded that but a few days since, an order was granted by this court, compelling the appellee, Sam. Lytle, to return into the bank two thousand and sixty dollars, gold, and over,. to await the termination of this suit.

This, with the judgment as described in the bond, would amount to a much larger sum than is covered. Indeed, there is so little similarity in the judgment rendered by the court, and the one described in the bond, that we do not consider ourselves warranted in saying that they are identical, and the appeal is therefore dismissed.

Dismissed.