
    Hollis and Wife v. Border.
    Where there were three sureties in an appeal bond, one of whom was a co-defendant with the appellants in the court below, the court refused to dismiss the appeal on that ground, but said that the receiving of a co-defendant as a surety was highly objectionable, as it may be possible that his sufficiency and not that of the actual sureties was the real ground of approval.
    Where an appeal bond described the judgment as a judgment rendered against the appellants and Jas. 13. Johnson and Ja3. Perkins for the sum of seven hundred dollars and thirty cents, whereas it was a decree restraining them from paying over a judgment for that amount to Coleman and Tinnins, or any person for them, and authorizing Border, surviving partner, to enforce the collection of the same for the benefit of the late firm of Francois & Border: Held, that the judgment was not properly described, and that the appeal should be dismissed. (Note 51.)
    The only contingency in which parties have been permitted to file a new appeal bond is where the original bond was insufficient in amount, but not vitiated by other defects; and we are not disposed to extend the operation of the principle to eases not already embraced. The defect here is not insufficiency, but misdescription. (Note 52.)
    Appeal from Sail Augustine. Motion to dismiss the appeal, based on alleged defects in the appeal bond—
    1st. Misdescription of the judgment.
    2d. The want of sufficient sureties.
    Motion by appellants to continue, with leave to give a new appeal bond.
    
      Arclrey %• Sexton, for appellants.
    Wo think the motion to dismiss ought not to prevail in this ease. The bond is regularly filed in the papers of the case in the court below, and there can he no doubt as to the ease to which it is intended to apply. It mentions part of the defendants correctly, and that it fails to mention' all, it seems to us, does not render it defective. Certainly an action could be maintained upon it in favor of the appellee, Border. We think where the court can clearly see the connection of tiie bond witli the ease it will not hold the bond had.
    The second objection is not tenable. There are two sureties to the bond besides James B. Johnson, and this complies with the statute. The statute says there must be two or more sureties. (Dig., art. 789.) So that, if Johnson be a party defendant, it only goes more strongly to identify the bond with the case.
    The judgment described in the bond is identical with the one described in the plaintiff’s hill and in the injunction. This, too, connects the bond conclusively with the case. We think the statute has been substantially complied with, and that the appellee is fully secured.
    If the court should deem the bond imperfect, the appellant asks leave to show' cause for continuance to give a perfect bond, which he offers to do if allowed time.
    
      Henderson Sr Jones, for appellee.
   Hemphill, Oh. J.

The latter objection, we are of opinion, cannot he maintained ; for, although J. B. Johnson, one of the sureties, was co-defendant in the judgment against appellants, yet there are two sureties against whom there is no such objection. Appellants are required to give bond with two or more sureties; and if two be given the requisites of the law are satisfied. The receiving of a co-defendant as a surety is, however, highly objectionable, as it may be possible that his sufficiency and not that of the actual sureties was the real ground of approval.

The first objection, viz, misdescription of the judgment, is more substantial.

The bond describes the judgment as one rendered against these parties, together with James B. Johnson and Jas. Perkins. The judgment described in the bond and that appearing in the record are against different parties. They are not the same judgments, and the variance in the description is fatal to the bond, and consequently to the appeal. (4 Tex. R., 287.)

Had the names of all the co-defendants been inserted in the description, yet the statement of the judgment, though perhaps not fatally defective, would have been quite inaccurate. It is described as a judgment rendered against them in favor of said Border, surviving partner, in the District Court,, for the sum of seven hundred dollars and thirty-three cents, whereas it is a decree which restrains them from paying over a judgment for that amount to Coleman and Tinning, or any person for them, and authorizes John P. Border, surviving partner, to enforce the collection of the same for the benefit of the late firm of Francois & Border. The decree as rendered could scarcely be recognized by the description given in the bond.

The motion for a continuance to allow the parties time to give a perfect and sufficient bond is refused. The only contingency in which parties have been permitted to file a new bond is where the original bond was insufficient in amount but not vitiated by other defect, (4 Tex. R., 148;) and we are not disposed to extend the operation of the principle to cases not already embraced. The defect here is not insufficiency, but misdescription — the judgment as described in the bond being variant from that appearing in the record.

Appeal dismissed.

Note 61. — Smith v. Cheatham, 12 T., 37; Horton v. Bodine, 19 T., 280.

Note 62. — Smith v. Cheatham, 12 T., 37; Scranton v. Bell, 35 T., 413.  