Hicks v. Oliver , 71 Tex. 776 ( 1888 )

Gaines, Associate Justice.

This is an appeal from a judgment of the district court of Rusk county, dismissing an appeal from the county court. The appellee, Mrs. E. J. Oliver, as administratrix, with the will annexed of the estate of R. W. Oliver, deceased, filed an application in the latter court (in which the estate was being administered) for an order to sell a certain brick store house and lot belonging to the estate. Appellants, as devisees under the will of the testator, resisted the application. The order was granted, and they gave notice of appeal to the district court. At the same term another order was granted, making an allowance to the administratrix, who was the widow of the deceased, in lieu of exempt property. The granting of this order was also resisted by appellants, and notice of appeal was given. The appellants, in order to perfect their appeal, gave bond in the sum of twenty-five hundred dollars, conditioned as the law directs. The motion to dismiss the appeal was based upon alleged defects in the bond. The first ground of objection to the bond was that it did not describe the judgment. This ground is not noticed in the brief of counsel, and it may be presumed that the court did not deem it sufficient. . If, however, this objection were well taken, the judgment dismissing the appeal would have to stand. But we are of opinion that the bond is sufficient to identify the order appealed from, and that further particularity was not required. The bond shows that the first order intended to be reviewed was an order for the sale of a brick store house and lot, and we think no further description of the property was necessary.

The other ground of objection to the bond was that the obligors bound themselves in a fixed sum, namely, two thousand five hundred dollars. The counsel for appellee insist in their brief that because the statute does not provide that the bond shall be given in any sum to be fixed either by the amount or value of the subject matter of the controversy, or the probable amount of the costs, or by any officer, an obligation for a stated sum, is not contemplated by the statute, and is therefore void. But we think the proposition can not be maintained. It is true, as argued, that the word “bond” used in the statute does not necessarily imply that it shall be given for a penal sum conditioned for the performance of the obligation intended to be secured; but it is also true, that in our statutes, as a general rule, wherever a bond is required, such an obligation is meant. The act of 1848, in prescribing the bond for ap-. peal from the county to the district courts, in matters relating to estates of deceased persons, required that the amount should be fixed by chief justice. (Pas. Dig., art. 1384.) The omission of a similar requirement in the existing statute is significant. (1 Sayles’ An. Rev. Stat., art. 2301.)

It admits of the construction that it may have been intended that no sum should be named, so as to avoid the danger of an insufficient security by reason of an insufficient amount being fixed. But it also may have been considered that if the judge whose decision was sought to be reviewed was authorized to name the amount of the bond, there was. danger that it would be fixed at a sum onerous to the party seeking the appeal. It is reasonable, therefore, to presume that the change was made in the interest of parties appealing, and not of appellees, and that its object was not to prohibit a bond in a fixed sum beyond which the pbligors would not be bound. This consideration is supported by the fact that where the review of the proceedings of the county court in estate matters is sought by certiorari, the district judge who grants the writ is required to fix the amount of the supersedeas bond. (Sayles’s An. Rev. Stat,, art. 293.) But the article under consideration says the appellant shall “file with the clerk a bond with two or more sufficient sureties, payable to the county judge, to be approved by the clerk, conditioned, that the appellant will prosecute his appeal to effect,” etc. The word “payable” indicates that a sum should be named to be paid, as the word “conditioned” indicates that there was to be an obligation to pay a specified sum which was to be defeated on condition that the appellant performed the obligation the statute was intended to secure.

It follows that in our opinion the court erred in dismissing the appeal. It may be, that when a bond is given in a sum which should appear to the district judge to be insufficient, he should, upon motion, under the rule of practice in like cases, require the appellant to give a new bond, and upon a failure to comply with the requirement he should dismiss the appeal. But we see no reason to doubt the sufficiency of the amount of the bond in this case.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Opinion delivered November 20, 1888.