201 S.W. 664 | Tex. App. | 1918
The following statement of the nature and result of the suit is adopted from appellant's brief:
"This suit was filed in the justice court, precinct No. 1, Collin county, on the 8th day of September, 1914, being a suit for $165, for the alleged conversion of a horse and buggy shipped by appellee from McKinney, Tex., to Denison, Tex. The case was tried before T. Hughston Beverly, justice of the peace, on January 4, 1915, which resulted in judgment for appellee for the full amount sued for, to wit, $165, from which judgment appellant gave notice of appeal to the county court of Collin coun ty, Tex., on the 13th day of January, 1915, and filed the appeal bond, which was approved and filed on that date, and the justice of the peace was requested by attorney for appellant to make out and forward the transcript to the county court of Collin county, Tex. The justice of the peace neglected to make out and file the transcript and the original papers in the county court of Collin county, Tex., to the next succeeding term of the county court, and neglected for several subsequent terms to file the papers in the county court, though requested to do so at each subsequent term by the attorney for appellant, and promised to do so at once at each subsequent term of the court, stating that he had merely overlooked the matter. Mr. Beverly, justice of the peace who tried the case, resigned his office the latter part of July, 1916, and Hon. T. C. Andrews was appointed justice of the peace in his place. Said T. C. Andrews, justice of the peace, immediately upon request of appellant's attorney, made out a transcript of the case and filed the transcript with the original papers in the case in the county court on the 2d day of August, 1916, but made a clerical error in his certificate of the transcript, in which he used the name of Hughston Beverly, the former justice of the peace, in the body of the certificate. On the 7th day of November, 1916, appellee filed a motion to dismiss the appeal in the case because: First, no correct transcript of the record in the justice court was filed in the case; and, second, because the transcript filed herein was too late, in this: That the judgment was rendered in the justice court on January 4, 1915, and the transcript was not filed in the county court until the 2d day of August, 1916. After the filing of said motion and before a judgment was entered thereon, to wit, the 19th day of January, 1917, appellant had prepared a correct transcript which was filed in the county court on the 19th day of January, 1917. On April 7, 1917, after the corrected transcript had been filed in the county court, the court passed upon the motion heretofore filed to dismiss said appeal, and sustained the motion to dismiss the appeal, to which action of the court appellant excepted, and gave notice of appeal to the Court of Civil Appeals."
Under the first assignment of error it is insisted that the court erred in dismissing the appeal, because the motion to dismiss was not filed in time. The same contention is made under the second assignment.
By the third assignment appellant urges the proposition that plaintiff, Aycock, waived the filing of the transcript and papers at the first or second term of the county court after the trial in the justice court, and urges the further proposition under the third assignment that the findings of fact by the court show that the appellant used due diligence to have the transcript and papers sent up. Vernon's Sayles' Civil Statutes, art. 2396, provides that when an appeal has been *665
granted from the justice court to the county court it shall be the duty of the justice who made the order immediately to make out a transcript of the entries on his docket and after certifying thereto officially to transmit the same to the clerk of the county court of his county. It is provided by article 2395, Id., that the appeal is perfected when the party aggrieved by the judgment in the justice court files his appeal bond, or affidavit in lieu thereof. The Supreme Court, in Wells v. Driskell,
"We do not wish to be understood as holding that it is only necessary in case of an appeal from justice courts to file an appeal bond and send up that with the original papers without a proper transcript of the proceedings."
Judge Reese, in Cariker v. Dill,
The judgment is therefore affirmed.