Edmiston v. Edwards , 31 Tex. 172 ( 1868 )

Lind'say, J.

—The only error assigned in this case which requires the notice of this court, and upon which the appel-” lant relies for a reversal, is the permission the court below gave the appellee "to file a new bond after he had quashed the bond executed for the obtention [obtaining?] of the writ of certiorari for insufficiency.

There can be no doubt that a writ of certiorari, issued without the execution of a bond at all, would be illegal, as the statute requires the execution of a bond as a prerequisite to the obtention [?] of the writ. But the execution of a bond, however defective it may he, is a technical compliance with the terms of the statute; and although it may he quashed for insufficiency, the court may and should grant leave to the party to execute a good and sufficient bond; and if he does it in a reasonable time, (of which the court has the discretion in judgment,) so as to afford complete protection to the rights of the adverse party, the cause should proceed as if the bond had been originally good and sufficient. Such an exercise of the discretion of the court works no prejudice to the opposite party in the trial of the case upon its merits. In Berry v. Martin, 6 Tex., 265, it was determined that, when the bond was executed with only one surety, (the statute requiring two,) the defect might be cured in the district- court. Such a bond with only one surety 'would be quashed upon motion for insufficiency. Yet the court might authorize the execution of another and a sufficient bond, and proceed with the case to trial.

We think the court did not err in granting the leave to make a new bond, and can discover no such error in the record as would warrant the disturbance of the judgment of the district court; and it is therefore

Aeeirmed.