Neely v. Texas & P. Ry. Co.

PROVOSTY, J. [1] By Act 112, p. 241, of 1916 the appellant may give a second appeal bond where the sureties on the first are pecuniarily insufficient. But this1 must be done “within two days” after the adverse party has served upon him notice of such insufficiency. Notice was thus served upon the appellant Jeff D. Neely, by means of a rule to test the sufficiency of the surety on his appeal bond, of which he accepted service on June 22, 1915; and the second bond which he gave, in an attempt to take advantage of the provisions of said act, was filed in September, 1915 — evidently too late. His motion that said bond be allowed to stand in place of or supplement the bond given by him in his appeal must therefore be denied. Instead of filing this bond within the delay thus positively fixed, he took a rule upon the defendant to show chuse why he should not be allowed to file it. But this rule was filed only in September, so that the two days’ delay allowed for filing the bond had long expired when this rule was filed; not that we would intimate that the pendency of the rule could have suspended the course of the two days’ delay allowed for filing the bond. The first above numbered suit is the appeal in the main suit. The second is- an appeal taken by the Texas & Pacific Railway Company from the judgment on the rule to [447] test the sufficiency of the surety; the trial court having held the surety to be sufficient. The third above numbered suit is a certiorari sued out in this court by the Texas & Pacific Railway Company to review the action of the trial court in allowing the said second bond to be filed; the trial court having refused to grant an appeal from its order allowing said second bond to be filed. This certiorari involves precisely the same matter as the motion hereinabove disposed of, and is therefore disposed of by what has been there said. These matters' have been consolidated with the main appeal. The matter therefore now to be considered is as to whether this main appeal should not be dismissed because of insufficiency of the surety. [2] The bond is for $250. The surety buys and sells cattle on his own account and as agent for others at the stockyards. 1-Ie has a desk in the office of one of the companies doing business there. His only property consists of furniture not liable to seizure, a bank account which he says is his, but which stands in the name of his daughter, showing a credit balance of $200. The money to be used in his business he borrows as needed. He earns, he says, from $150 to $300 a month. Upon this showing we do not see that this bond could be made good by the seizure and sale of the property of this surety, and therefore conclude that he is insufficient, and that the appeal must be dismissed. The motion to have the second bond supplement the first is denied, the judgment allowing this second bond to be filed is annulled, the judgment denying the rule to show cause why the surety on the appeal bond should not be held to be insufficient and the appeal dismissed is set aside, and the appeal in this case is dismissed, all at the cost of the plaintiff, Jeff D. Neely.