McCoy's Heirs v. Jones, 9 Tex. 363

lVirKELBR, J. The undertaking of the sureties upon an appeal or writ-of-error bond is for the prosecution of the appeal or writ of error with effect. IE this he done and the judgment reversed, the sureties have performed their undertaking and are discharged. The said bond is funclus officio.

It is the affirmance of judgment winch fixes the liability of the sureties, and it is only in that case that the sureties are bound for the performance of their principal. .If, as assumed on the part of the appellees, as it is perhaps to be inferred, the appellees have, complied with the decree of the court on their part by paying the money adjudged to be paid by them, they were entitled merely to a writ of possession to recover the land in controversy. And there was no necessity that the bond should be in an amount more than sufficient to secure the costs of the suit. (Hart.

Dig'., art. 7!X).) In this view the bond is deemed sufficient ; and we are of opinion that the. motion to dismiss be overruled. In respect to the merits, it is to be observed that there is no rule of law or practice, which required the court, at the request of the plaintiffs, to set the case for trial "at a future dav". It. might have been proper, under the circumstances, to make such an order; but the plaintiffs coidd not demand it as a matter of right. IVlieu the cause was called for trial in its order it, was incumbent on the plaintiffs to try or continue.

If they required further time to prepare for trial they should have moved a continuance. Not having done so, the court did not err in requiring them to proceed to trial. The objection to the admissibility of evidence was not entitled to consideration when first taken on a motion in arrest of judgment. The only remaining objection to the judgment deserving of notice is the refusal of the court to permit the plaintiffs to take a nonsuit.

The defendants had pleaded in reconvention; and repeated decisions of this court have settled that where the defendant has thus pleaded, the plaintiff cannot deprive him of his right to an adjudication upon the matters embraced in his plea by taking a nonsuit. The judgment is affirmed. Judgment affirmed.