The appellee filed suit in a Justice Court against J.J. Cason, the surviving partner of W.M. Cason (now deceased) Bro., and against W.B. Downing and J.D. Stafford, sheriff of Camp County, for the conversion of 2000 pounds of seed cotton, and recovered jointly against all of the defendants the sum of $46.41. The conversion was by virtue of a writ of attachment sued out in another *Page 318 suit by appellant J.J. Cason against the property of one D.P. Seay, and levied by defendant Stafford upon the cotton, etc. Cason had given Stafford an indemnity bond, with J.W. Wardlow, W.H. Burrass, and J.A. Bailey as sureties. Before the trial of the present case in the Justice Court, Stafford caused the sureties on the indemnity bond to be made parties to the suit, and at the trial obtained judgment over for a similar amount to that recovered by the appellee. The appellants J.J. Cason and W.B. Downing appealed from the judgment in favor of the appellee to the District Court, where, upon motion of the plaintiff (the appellee), their appeal was dismissed, and they have appealed to the Supreme Court from the last mentioned judgment.
The District Court held their appeal bond to be insufficient. The bond was conditioned as the law directs, and had been duly approved by the justice, and was for a sufficient amount. It was made payable to the appellee John Laney, but not to the sheriff J.D. Stafford. That was the only defect in the bond, if such omission can be deemed to be a defect in the present case. But the plaintiff on his motion to dismiss the appeal did not present the point. The nearest approach to it is the following objection to the bond, viz.: "3. The appeal bond is notconditioned as the law requires." The bond is conditioned substantially as the law requires, and the objection therefore is general and does not reach the supposed defect. The sheriff, however, filed a motion to dismiss specifically upon the above ground, but his motion was not called to the attention of the court. At least the judgment distinctly recites that it was plaintiff's motion which was sustained. It is fair, therefore, to infer that Stafford did not insist upon his motion, and he is the only party having any interest in the question.
But again, it appears from the record that several terms of the District Court had elapsed after the perfecting of the appeal from the Justice Court before the motions to dismiss were filed, and that prior to the filing of the motions the plaintiff had appeared in the District Court, and under leave of the court amended his original account. This might well be held to be a waiver of any formal defects in the bond, not of a fundamental nature, going to the jurisdiction of the court. It was a submission by the plaintiff to the jurisdiction of the court acquired through the bond which the appellants had executed. Saylor v. Marx, 56 Tex. 92.
For the reasons above indicated, we think that the judgment ought to be reversed and the cause remanded.
Reversed and remanded.
Adopted November 24, 1891. *Page 319