Peabody v. Marks

Bell, J. We are of opinion that the motion to dismiss the writ of error in this case must be sustained. The matter in controversy is one which concerns the plaintiff in error individually, and not in her representative capacity. The homestead rights, in relation to which the controversy arose, are accorded to her by the law, as the widow of the intestate, and not as the administratrix of his estate. She would have the same rights if she were not administratrix. The controversy being one which concerns [22] her individually, she is required to give bond for costs before she can obtain a writ of error, in like manner as other persons are required to enter into bond by the 13th section of the Act of February 5th, 1858. (See Battle v. Howard, 13th Tex., 345.) The Act of February 5th, 1858, provides that “no writ of error to remove a cause from the District to the Supreme Court shall in any case issue, unless the plaintiff in error give bond, with sufficient security, for all the costs which may accrue,” &c. We think that this Act, taken in connection with the provisions of the Act of 13th May, 1846, in relation to writs of error, (Hart. Dig., Arts. 793, 794,) must be held to mean, that a party applying for a writ of error must execute the bond for costs, and put himself in a condition to demand the ..citation • in error, within two years from the rendition of the judgment sought to be revised. The filing of the petition for the writ of error, without the bond for costs, secures no right to the party, and devolves no duty upon the clerk. If the party applying for the writ should file his petition for the writ at one time, within two years from the rendition of the judgment, and at a subsequent time, also within two years from the rendition of the judgment, should file his bond for costs, he would undoubtedly be entitled to the -writ. In other words, the filing of the petition, and the execution and filing of the bond, need not be simultaneous, provided both are done within two years from the rendition of the judgment. If the petition and the bond are filed within two years from the rendition of the judgment, the citation may be issued by the clerk after the two years have expired ; because, before the expiration of the two years, the party has secured the right to the writ .by filing his petition and executing the necessary bond. But if the petition and- bond are not filed within two years after the rendition of the judgment sought to be revised, the party does not entitle himself to the writ. The judgment sought to be revised in this case was rendered on the 30th of October, 1857, and the bond for costs was not filed until the 5th of January, 1860. The motion to dismiss the writ of error is sustained. Ordered accordingly. Dismissed.