Motion for Rehearing — Surety on Supersedeas Bond.
The surety on a supersedeas bond against whom a judgment has been rendered is a party to the suit and the writ of error, and where the application for writ of error of his principal has been refused and the principal, who has been declared a bankrupt, does not ask for a rehearing, his surety may file a motion for rehearing urging only such errors as those duly assigned by his principal.
MR. JUSTICE GREENWOOD delivered the opinion of the court.
In this case, the Court of Civil Appeals, under Article 1857, Vernon's Anno. Texas Civil Statutes, entered judgment against the Metropolitan Insurance Company, as surety on the supersedeas appeal bond of plaintiff in error, John H. Kirby, and application for writ of error by Kirby has been refused. John H. Kirby having been adjudged bankrupt and asking no rehearing here, his surety asks leave to file a motion for rehearing of the judgment of this court. The supersedeas surety against whom a judgment has been rendered is a party to the suit and to the writ of error. Art. 1767, R. S. In order to prevent injustice being done by an adverse judgment against the surety, he should be heard. He is necessarily represented by his principal, the plaintiff in error in the presentation of assignments of error. While he cannot present new matter, the surety condemned to pay a plaintiff in error's debt may urge errors duly assigned by the plaintiff in error. The motion of the Metropolitan Casualty Insurance Company asks leave to file a motion confined to the assignments of error of plaintiff in error Kirby. Leave to file same is therefore granted.