69 Tex. 510 | Tex. | 1888
This was an information in the nature of a quo warranto, filed by the county attorney of Galveston county, in the court below, its object being to oust the appellant from the office of recorder of the city of Galveston, the duties and privileges of which he was alleged to be exercis - ing in violation of law.
A trial was had, and, on the thirtieth day of July, 1887, a judgment was rendered in the court below ousting the appellant from said office and restraining him from further discharging the duties of the same. From this judgment the appellant 'gave notice of appeal to this court, and, on the fifteenth of August, 1887, perfected his appeal by giving the proper bond. The transcript was applied for and received by the appellant’s attorney, and was, for the first time, filed in this court on the third day of January, 1888, and at its Galveston branch. The State now moves to dismiss the appeal, because it was returnable at the Tyler branch, at the term begun and held there on the first Monday in October, 1887, and not to the term now in session at, this place.
The act of July 9, 1879, Special Laws, page 43, provides the cases in which an information in the nature of a quo warranto may be prosecuted, the person by whom the suit is to be instituted, and the manner in which the proceedings are to be conducted in the district court. It' also provides for an appeal to this court, and upon this subject uses the following language: <£A11 such appeals shall be prosecuted to the term of the court, in session, at either branch, or the first term to be held, if not in session, after judgment has been rendered in the district court.” There is no mistaking this language. It positively requires that, if judgment be rendered during a vacation of the Supreme Court, the appeal shall be returned to the first term of that court to be held thereafter, no matter at which branch the court may sit. There is no discretion left to the appellant. If he does not comply with the law governing the appeal, he must suffer the consequences always attending a failure to bring up an appeal to the term of this court to which it is returnable. This court thereby loses jurisdiction of the cause, and must dismiss it from the docket.
The use of the term shall, in this connection, shows that it was the intention of the Legislature to make it the imperative duty of the appellant to prosecute the appeal to the first term of this court in session after the rendition of the judgment below; but
Dismissed.
Opinion delivered January 17, 1888.