Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62. Page: 33
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1 884] WELLS V. LITTLEFIELD. 33
Opinion of the court.
judgment which should be rendered in favor of Wells. If the court
proceeded to make a new record, or rendered judgment under any
circumstances against Wells, it would clearly exceed the limits of its
Hence, the admission of new evidence was beyond the power of
the court. In looking into the replevin bond it did not receive new
evidence. The bond is properly no part of the testimony, but a portion
of the record, of which the court is compelled to take notice
without attention being called to it. Upon a jury trial it is no
proper instrument to be submitted to them, because it bears in no
respect upon the issue they pass upon. When the judge performs
the functions of a jury he does not consider the bond as a matter
of evidence, but after he has determined that the defendant is entitled
upon the proof to a recovery, he looks to the bond as a part
of the record, to see whether or not he shall render the statutory
judgment against the sureties.
It is just here that the mandate allowed him, if at all, the use of
some degree of discretion, denying its exercise as to any of the
previous matters. If the bond was invalid, of course the judge
would be authorized to deny a judgment against the sureties, but it
must still be in favor of Wells. If valid, he must enter it up against
the sureties, and this was what the court did in its judgment of December
8, 1883, and its action was entirely proper and correct.
But when it afterwards proceeded to set this judgment aside, not
for any error of the court in passing upon the bond or the then
present record of the cause, but on account of facts transpiring previously
to the trial, it passed the bounds of the discretion allowed it,
and trespassed upon a domain clearly closed to it by the mandate
issued from the supreme court. It proposed to make a new record,
when we had ordered that the record as it then stood should alone
be considered. It proposed to imperil the right of Wells to a judgment,
when the mandate and opinion declared that it should under
any and all circumstances be rendered in his favor.
We think, therefore, that in setting aside the judgment of December
8, 1883, which had been properly rendered in accordance
with our mandate, in order to let in newly-discovered testimony,
the court exercised a discretion not left to it under the directions
contained in an opinion rendered in this cause, and that it is our
duty to enforce our said orders and our appellate jurisdiction
through the writ of mandamus.
If the ground taken by respondent's counsel, that we cannot issue
the writ because the relator has his remedy by appeal, is to prevail,
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Austin term, 1884, and the Tyler term, 1884. Volume 62., book, 1885; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth28512/m1/55/: accessed September 24, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .