33 S.W. 303 | Tex. App. | 1895
The statute requires the bond to be in double the amount of the judgment. It was held in Colorado County v. Delaney,
This decision was cited by counsel and apparently followed by the Supreme Court in Ross v. Williams,
We think the Court of Appeals placed the proper construction on the statute, and that the case of Colorado County v. Delaney, supra, and any others following it, should no longer be recognized as authority. The action of the County Court, therefore, in this case, in dismissing the appeal because the amount of the bond was only double the sum recovered in the justice court exclusive of costs, was proper.
It is strenuously insisted, however, that the court had no right to act on the motion to dismiss till the term at which the case could have been tried. The transcript was filed after the first day of the term at which the appeal was dismissed, but the appellant was notified and resisted the motion. We are of opinion that a court may at any time, upon notice to the opposite party, dismiss a case for want of jurisdiction. Such action is not in any sense a trial of the case, but a refusal to permit it *528 to remain on the docket for trial. A defeated litigant should not be permitted to obtain a stay of execution without the execution of a sufficient appeal bond, in order that he may have a trial of a case which must be dismissed when it is reached.
Motion overruled. Overruled.