#### Heidenheimer Bros. v. Lane Bledsoe.

(No. 2652, R. Book No. *4,*p. 328.)

Appeal from Wilson County.

Opinion by

Willson, J.

§ 316. *Appeal bond from justice's court; conditions of.*Where, upon appeal from justice’s to the county court, the appeal bond was conditioned that appellant “shall prosecute his appeal to effect, and shall pay off and satisfy the judgment which may be rendered against him on such appeal *in the county court,”*and it was objected that the words “in the county court” limited the liability of the sureties upon the bond, and rendered it insufficient, *held,*that it was not apparent that the addition of these words in any manner affected the liability of the sureties. Whatever judgment might or could be rendered in the county court would be the judgment of that court, and within the condition of the bond, and we fail to perceive the force of the objection.

§ 317. *Appeal bond where one surety was surety on claim bond, and against whom judgment had been rendered in justice's court.*Where it was objected to the appeal bond that one of the sureties (there being but two) had been surety on the claim bond, and that the judgment of the justice’s court was rendered against him, and therefore he could not legally be considered a surety, *held,*that whilst the objection would to all appearances be fully sustained by the decisions of the supreme court in McGarrah v. Burney, 4 Tex. 287; Labadie v. Dean, 47 Tex. 90, and Daniels v. Larendon, 49 Tex. 216, yet we find other decisions of the same court, which, to our understanding, hold a contrary doctrine; as, for in*135stance, in Trammell v. Trammell, 15 Tex. 291, and Saylor v. Marx, 56 Tex. 90. In Saylor v. Marx, Trammell v. Trammell is commented upon and approved, whilst the •other cases cited above are discussed but. not directly overruled. In Saylor v. Marx, the question arose upon an appeal bond which had been signed by appellant’s sureties upon his costs bond in the court below, and against whom a judgment for costs had been rendered. It was held as follows: “In the opinion of the court there was in the present case an appeal bond, with sureties, which, having been approved by the district clerk, was sufficient to perfect the appeal and give this court jurisdiction.” It is not stated what would have been the ruling had the bond been objected to in time. But we are led to conclude, from the reasoning of the opinion, that the bond would have been held sufficient under any circumstances, under the authority of Trammell v. Trammell, because in that case objections to the bond were made in time and in proper manner, and yet the bond was sustained. Believing that the cases of Trammell v. Trammell and Saylor v. Marx, which contain the last expressions of our supreme court upon this subject, sustain the sufficiency of the appeal bond objected to in this case, we shall hold that the county court did not err in overruling appellant’s motion to quash it.

§ 318. *Continuance; Koiv application for is considered in county court where one continuance teas had in justice’s court before appetd.*On application for continuance in county court, previous continuances had in justice’s court before appeal will be considered in determining its sufficiency, because the case is still the same base, the only effect of the appeal being to remove the case to another forum for a trial *de novo.*

§ 319. *Trial of the right of property; evidence of fraud.*On the trial of the right of property, where the plaintiff proposed to show fraud on part of defendant’in claiming the property, which evidence the court refused to allow, *held*error. Under an issue on the trial of the right of *136property, the greatest latitude of proof must necessarily he admitted. A case directly in point is Linn v. Wright, 18 Tex. 317.

May 16, 1883.

Reversed and remanded.