79 Tex. 314 | Tex. | 1891
Appellee recovered a judgment injustice Court against appellant for $195.14, with some interest and all costs.
In order to perfect an appeal appellant executed a bond with sureties, “ conditioned that the said J. A. Pace, appellant, shall, prosecu be his appeal with effect, and shall pay all costs which have accrued in the court below or which may accrue in.the District Court."
In the District Court appellee moved to dismiss the appeal because the appeal bond was not in double the amount of the judgment appealed from, and because the bond was not conditioned to pay and satisfy the judgment which might be rendered against Pace.
, Ho other objection was made to the bond, but on motion the court below held the bond insufficient and dismissed the appeal.
From that judgment this appeal is prosecuted.
The Constitution gives the right of appeal from judgments of Justice Courts only ‘1 under such regulations as may be prescribed by law." Const., art. 5, sec. 10.
Article 1639, Revised Statutes, requires a person desiring to appeal from - such a judgment to give bond in a sum equal to double the amount of the judgment from which he desires to appeal, “ conditioned that the appellant shall prosecute his appeal to effect and shall pay off and satisfy the judgment which may be rendered against him."
Prior to the Act of April 14,1883, the law referred to was the only one regulating appeals from such judgments.
On date last named another law was passed, which was amended by an act passed on April 2, 1887, and under this last law, which was in force when appellant sought to perfect an appeal, it was provided that “'where the appellant is unable to pay the costs of appeal or to give security therefor, he shall nevertheless be entitled to prosecute his appeal; but in order to do so he shall be required to make strict proof of his inability to pay the costs or any part thereof."
The manner of making this proof is prescribed by the act, and the amendment is numbered article 1639a, Revised. Statutes.
By the Act of April 14, 1883, still another article was added to the Re
It is clear that the bond given is not a .compliance with article 1639, Revised Statutes, which is the only law which authorizes the perfecting of an appeal by bond.
It is equally clear that the bond given is not a compliance with article 1639a, for that contemplates that an appeal may be perfected without bond, by proof made in the manner therein prescribed of the inability of the party to pay the costs.
Appellant evidently was unable to make the affidavit required by that article, for he was able to make and did make a bond with sufficient sureties to secure all costs.
It is difficult to see any good reason why a person should not be permitted to perfect an appeal as appellant sought to in this case, when he could perfect an appeal by proof of his inability to pay or secure the costs; but this whole matter is under legislative control, and from the language of the statutes it is clear that no regulation has been made which permits a person against whom a judgment has been rendered in a Justice Court thus to perfect an appeal.
Article 1639b recognizes but two means by which an appeal from such judgments may be perfected. One is by giving the bond prescribed by article 1639, and the other by making the affidavit prescribed by article 1639a.
The Legislature may have concluded that if a person was able to give a bond to secure costs he was able to give a bond in double the amount of the judgment to be appealed from, and for this reason only allowed an appeal when a bond to secure the payment of the judgment was not given when inability to pay or secure the e payment of costs was shown in the manner prescribed by article 1639a.
Whether this is true, or the failure to provide for an appeal on bond such as appellant gave was an unintentional omission on the part of the Legislature, is a matter of no importance in the decision of this case; for in any event no regulation has been prescribed bylaw under which it can be held that the giving of the bond in question perfected an appeal, and the judgment of the court below must be affirmed, unless the law applicable to appeals from District and County Courts can be applied to appeals from Justice Courts under article 1644, Revised Statutes.
That article provides that "whenever the mode of proceeding in any particular case or matter is not prescribed by the provisions of this title or of some other law or title specially relating thereto, the same shall be governed by the provisions of the title relating to the mode of procedure
We are of opinion that this statute is not applicable to this matter, if for no other reason, because it is evident that the Legislature intended to prescribe fully the regulations under which appeals from judgments of Justice Courts might be perfected.
If no regulation in this respect had been prescribed a different conclusion might be reached.
There is no error in the judgment and it will be affirmed.
Affirmed.