H., E. W.T. Ry. Co. v. Carroll , 14 Tex. Civ. App. 393 ( 1896 )

Appellee sued the railroad company and Johnson Todd in a justice's court on account for $162.95. Johnson Todd failed to answer, but the railroad company answered denying its liability. Judgment was rendered in favor of plaintiff against all of the defendants for the amount sued for, from which the company appealed to the County Court, giving an appeal bond good in all respects, except that it was payable to the plaintiff alone, and not to Johnson Todd, the codefendants. The latter appeared in the County Court, and filed an answer, making no objection to the appeal because the bond was not payable to them. The plaintiff made a motion to dismiss the appeal, which was sustained, for the reason indicated.

We are of the opinion that the ruling was error. If Johnson Todd were entitled to be secured by a bond payable to them, it was a right which they could waive. The notice of appeal and bond payable to plaintiff gave the court jurisdiction to entertain the case, and the objection to the bond was one which only Johnson Todd could make. Plaintiff was protected by the bond which the law required in his behalf. Tynberg v. Cohen, 76 Tex. 417 [76 Tex. 417]; Id., 24 S.W. Rep., 315. Johnson Todd answered and expressly waived any objection to the bond, and sought to have the case reinstated. The authorities referred to leave nothing to be said upon the point. There were other grounds stated in the motion to dismiss, but this was the one on which the court acted, and the others do not seem to have any merit in them.

Reversed and remanded.