Murchison v. Holly , 40 Tex. 439 ( 1874 )

Devine, Associate Justice.

The appellee, W. Holly, • as security on a stay bond of Saunders, sued out an injunction, in March, 1871, to enjoin the collection from him as security the amount of a judgment rendered in favor of Sorlev, Smith & Co. against Saunders, and by appellant as justice of the peace, alleging that Saunders had paid the debt in Confederate paper to Murchison, who was authorized to receive it, and entered on his docket satisfaction in full of the judgment, and prayed that Murchison, who had received the amount of the judgment, and Sorley, Smith & Co., who had caused execution to be issued against him for the amount, be made defendants, and restrained from collecting the same. All parties answered, and during the trial W. H. Cundiff intervened as the owner of the judgment by assignment from Sorley, Smith & Co.

Three verdicts have been rendered in favor of the plaintiff, Holly, and against appellant, Murchison. After the last trial, verdict and judgment in favor of plaintiff, Holly, and intervenor, Cundiff, the usual motion for a new trial was made by appellant, and overruled, and this appeal taken.

The motion by appellee to dismiss on the ground that appellant has not filed a bond in accordance with law, will not be considered, it not having been made according to Rule 26 of this court: “ On or before the first day set for hearing causes from the district from which the case comes.” The appellee urges the dismissal of the appeal, there being no assignment of errors. By Article 1591 of Paschal’s Digest, all errors not assigned shall be considered as waived. There being no errors assigned or complained of by appellant, and it appearing from the record that the court had jurisdiction of the subject matter and the parties — and it might be added, substantial justice having been meted out by the verdict and judgment — the appeal will be. dismissed. (See LegOn v. Withee, 25 Texas, 350.)

The appeal is therefore dismissed.

Dismissed.