ON MOTION FOR REHEARING.
The motion for the first time calls attention to the fact that in attempting to appeal from the District Court to the Court of Civil Appeals, plaintiff in error gave no appeal bond, and asks that the judgments of this court and of the Court of Civil Appeals be set aside and that the appeal be dismissed. The statutes and decisions in this state *606leave no doubt of the right to thus raise the objection at this late day. El Paso & N. E. Ry. Co. v. Whatley, 87 S. W. Rep., 819, and cases there cited; Halloran v. Texas & N. O. Ry. Co., 40 Texas, 466.
The condition of the law is not a creditable one which permits a party, who has voluntarily submitted the cause as if an appeal had been duly taken, to two courts having jurisdiction over appeals and writs of error in causes of the class to which the particular case belongs, to thus attack the jurisdiction of both courts, upon such a ground, after a final decision adverse to him has been given, and it is perhaps needless for us to say that nothing but the fact that the rule is too firmly settled to admit of question induces us to sustain this motion. If a change is to be made it should come from the Legislature, by which such provision might easily be made that appellees and defendants in error appearing in the Appellate Courts should be required to raise such objection before submitting their causes for decision, or be held to have waived the right to object.
The defendant in error did not appeal in his “fiduciary capacity” from the judgment of the District Court, and hence was required by articles 1400, 1401, 1402 and 1408 of the Revised Statutes to give bond or make affidavit in lieu thereof as other appellants.
The motion will therefore be granted and the judgments of this court and Court of Civil Appeals will be set aside and the appeal dismissed.
Opinion filed April 2, 1906.
Dismissed.