On Motion for Rehearing.
In their motion for rehearing appellants complain of the statemént in our opinion heretofore filed in this case that—
“This suit was brought by the appellee against the appellants, J. A. Herring, Sanford Dean, and Walker Sayles, who constitute the prison commission of the state of Texas.”
The rule of strict verbal accuracy was not followed in this statement, in that plaintiff’s petition complains of the “prison commission of Texas, J. A. Herring, Sanford Dean, and Walker Sayles.” . .
It is inconceivable to us that any one reading our opinion could doubt that the suit was one against the prison commission, and that the named members of the commission were sued only in their official capacity, but, in deference to insistence of counsel for appellants, we now expressly- so find.
Complaint is also made of our finding that upon the trial in the court below no general judgment was rendered in favor' of appel-lee for the amount due on the notes, nor for foreclosure of its lien, but such fore-' closure is expressly denied.
We may have also been verbaUy inaccurate in a portion of this statement. As we construe the judgment, it is one enforceable only by the mandamus granted against the prison commission. It does adjudge the amount found to be due on the notes against the appellants, but, in view of the express denial of foreclosure and order of sale, this adjudication was nothing more than a finding of the amount due on the notes, which was a necessary part of the judgment for mandamus. The portion of the judgment omitted from our opinion was as follows:
“And thereupon, the cause coming on to be heard, both parties announced ready for trial, and, a jury being waived, the issues of law were submitted to the court, who, having heard the evidence and argument of counsel, and it appearing to the court that plaintiff’s cause of action is liquidated and proven by instruments in writing executed by the defendant, the prison commission, it is the opinion of the court that the plaintiff should recover of the defendant, the prison commission, the amount of its debt, principal, interest, and attorney’s fees as specified in the notes sued on, aggregating at this date the sum of $112,484.61. It is therefore ordered, adjudged, and decreed by the court that the plaintiff, the Houston National Exchange Bank, do have and recover of and from the defendant, the prison commission, the said sum of $112,484.61, with interest thereon from this date at the rate of 10 per- cent, per annum and all costs in this case incurred, to which judgment of the court defendants then and there in open court excepted and gave notice of appeal to the Court of Civil Appeals of the First Supreme Judicial District of Texas, sitting at Galveston.”
If our construction of this judgment is sound, it is not a judgment against the state. The finding of the amount due on the notes being necessary as a basis for the mandamus, if appellee, under the- status cited in our opinion, was entitled to the mandamus, appellants cannot appeal from the judgment without giving the • bond or making the ‘ affidavit required by the statute.
We adhere to the conclusions expressed in our original opinion, and the motion for rehearing is overruled.