30 S.W.2d 599 | Tex. App. | 1930
The contention is that the proof in lieu of an appeal bond did not entitle the appellant, Lizzie Rollins, to prosecute the appeal, because such proof was not made before the court trying the case, and because the judgment appealed from was not sufficiently described in the affidavit constituting the proof.
By the terms of the statute (article 2266) a party "unable to pay the costs of appeal, or give security therefor" is nevertheless entitled to prosecute an appeal if he makes "strict proof of his inability to pay the costs, or any part thereof." Under some circumstances such proof may be made before the county judge of the county where such party resides, as it was in this case; but it is held the proof cannot be made before such county judge if the court trying the case is in session, as it was when the proof in question here was made, and that same must be made before the court trying the case. Graves v. Horn,
It is held that an affidavit relied upon as statutory proof in lieu of an appeal bond "must identify the judgment appealed from with the same certainty as is required in an appeal bond." Demonet v. Jones (Tex.Civ.App.)
The conclusion reached is that the "proof" in lieu of an appeal bond was insufficient for the reasons specified, and that we cannot do otherwise than dismiss the appeal for want of jurisdiction to hear and determine it. *652