Opinion
November 24, 1911. Rehearing Denied December 23, 1911.
Error from Hardeman County Court; W. S. Bannister, Judge.
Action by the Chillicothe Land Company against J. C. Ward, in which defendant interpleaded C. L. Lloyd. From a judgment for Lloyd on an appeal to the county court from a judgment of a justice's court, plaintiffs bring writ of error. Dismissed.
Berry Stokes, for plaintiffs in error.
Fires, Decker, Clarke John, for defendant in error.
Plaintiffs in error, the Chillicothe Land Company, a partnership composed of T. W. Carr and P. L. Hammett, real estate brokers, instituted this suit in a justice court of Hardeman county, Tex., against the defendant, J. C. Ward, to recover $190, alleged to be due them as commissions for the sale of a certain farm belonging to defendant. Defendant, by interplea and process issued thereon, made C. L. Lloyd, another broker, who was claiming the commissions for the said sale, a party to the suit. A trial before the jury in the justice court resulted in a verdict and judgment for C. L. Lloyd in the sum of $180 against the defendant, and that plaintiffs take nothing. The plaintiffs appealed the case to the county court of Hardeman county, where, upon a trial before the court, the same result was obtained, and by writ of error plaintiffs bring the case to this court.
C. L. Lloyd has filed his motion to dismiss the cause from this court, upon the ground that the county court had no jurisdiction of the cause, for the reason that plaintiffs filed no appeal bond or affidavit, in lieu thereof, in the justice court. In the case of H. T. C. Railway Co. v. Red Cross Stock Farm, 91 Tex. 628, 45 S.W. 375, the Supreme Court held that, in an action before a justice, if the judgment was that plaintiff recover nothing, and that judgment was rendered against him for costs only, he was entitled to an appeal without filing an appeal bond, under article 1670, Sayles' Statutes. Upon authority of that case and those cases following it, we presume plaintiffs in error herein prosecuted their appeal from the justice court to the county court. Such a practice is permissible where there is no judgment to be superseded, but we do not believe this is such a case. The defendant, Ward, were merely a stakeholder, admitting his liability to some one to the extent of $190, as commissions due for the sale of his farm, and, as was his right, had both parties before the court. Beyond the fact that he desired to be relieved of double liability, the defendant had no adverse interest to that of either party. C. L. Lloyd was the only party who was really adversely interested to the plaintiffs. An appeal from a judgment in the justice court has the effect of annulling that judgment and transferring the whole case to the county court for a trial de novo. Harter v. Curry, 101 Tex. 187, 105 S.W. 988. If the appeal had been legally perfected, defendant in error Lloyd would have been forced to forego the collection of his judgment in the justice court and abide the action of the county court. In order to force him to do this, a supersedeas bond, or, in lieu thereof, an affidavit in forma pauperis, should have been filed. An appeal by appellants in error without bond has forced him into the county court to litigate his rights anew, without the security for the ultimate collection of his judgment which the law contemplates he should have during the pendency of the appeal.
If plaintiffs in error desired to supersede the collection of the judgment, a bond should have been made, payable both to the stakeholder and defendant in error, or an affidavit filed. Failing to do this the county court acquired no jurisdiction of the cause, for which reason this court has none. The proceeding is therefore dismissed from this court, at the cost of the plaintiffs in error. Dickey v. Cox, 23 Tex. Civ. App. 67, 55 S.W. 360; Hall Music Co. v. Hall, 55 Tex. Civ. App. 610, 120 S.W. 904; Frazier v. Weinman, 120 S.W. 904; Slayton v. Horsey, 97 Tex. 343, 78 S.W. 920.