Smith & Williams v. Parks, 55 Tex. 82

Smith & Williams v. Parks

55 Tex. 82 | Tex. | 1881

Walker, P. J. Com. App.

It has long been settled, that, in order to confer jurisdiction on the supreme court by appeal, that the appeal to it must be perfected by the concurrence of two facts: notice of appeal duly given, and the giving an appeal bond within the time prescribed by law; and that without such concurrence this court has and can entertain no jurisdiction over the case. Burr v. Lewis, 6 Tex., 76; Lyell v. Guadalupe Co., 28 Tex., 57; Freestone County v. Bragg, id., 91; Loftin v. Nalley, id., 127.

No exception has been taken in this court by the appellees to the court’s jurisdiction, nor to the incomplete*86ness in the perfection by appellants of their appeal; but the cause has been submitted on its merits. But consent cannot confer jurisdiction; and though a cause be submitted on its merits without motion to dismiss the appeal, yet, if it appear by the record that the court does not possess jurisdiction, it will not attempt to exercise it, and in such case this court will, of its own motion, dismiss the appeal. Lyell v. Guadalupe County, supra; Loftin v. Nally, supra; Chambers v. Miller, 7 Tex., 75. Questions which involve the jurisdiction of the court will be considered at any time that they may come to the notice of the court, however great the lapse of time may havé been after docketing the cause in this court, and whether raised by motion to dismiss, or brought to the attention of the court in any other way. Evans v. Pigg., 28 Tex., 590.

The appeal bond in this case is not made payable to the plaintiffs in whose favor the judgment appealed from was rendered. An objection so grave as this extends beyond a question of informality, or mere irregularity in the form of the bond. The appellees were entitled, when their judgment was appealed from, to be secured by a bond which conformed substantially to the requirements of the statute, and which is consequently not liable to defenses of any character when it is sought to be enforced. Janes v. Langham, 29 Tex., 418. And if an appeal bond does not contain the conditions required by the statute, and by reason thereof does not afford that security to the rights of the appellee intended to be given by the law, the appeal will be dismissed. Doss v. Griswold, 1 Tex., 100.

Held, in Deal v. Rector, 12 Tex., 99, that where an appeal bond is executed after the death of the obligee, the bond is a nullity, and the appeal will be dismissed. The dismissal in that case was rested by the court on the ground that an appeal bond is essential to the exercise of *87the jurisdiction of the court, and that a bond payable to a person after his decease, being confessedly null and void, the appeal was deprived of its necessary support. See also Chambers v. Miller, 7 Tex., 75.

The record in this case shows that the obligee named in the bond died more than a year before the trial of the cause; yet the bond is made payable to him, by name, and describes him in the plural number as “ the plaintiffs in this suit.” Tide preceding part of the bond renders it impossible to give aid by a liberal interpretation to the above feature in this instrument. If the words “ as plaintiffs ” are sought to be referred to the actual plaintiffs in the judgment, by construing the descriptive phrase “W. J. Parks, as plaintiffs in this suit,” to relate to the heirs or legal representatives of W. J. Parks, so that it might be reasonably held, in the absence, at least, of exceptions taken to the bond by the appellees, that the obligation, considered as a whole, was payable to the plaintiffs in the judgment, we are opposed in this view by recitals in it, throughout, which disallow such an interpretation. For those recitals are consistent only with the hypothesis that the obligors meant to make the bond payable to W. J. Parks, and to no other person. Thus, the caption of the bond is entitled, “W. J. Parks v. Smith & Williams;” further, it recites that “the plaintiff, W. J. Parks, in this suit, recovered a judgment,” etc., against the appellants, and there is no reference in the instrument to any thing in the record, as, for instance, the number of the case, except the identity of some of the parties, and the amount of land in controversy, .whereby to show that Mrs. Parks and the other plaintiffs were intended as the obligees, rather than W. J. Parks.

This bond could not have served the actual plaintiffs in the judgment any of the uses or benefits contemplated by the statute which entitled them to have an appeal bond in case the judgment should be affirmed; and it is wanting *88in that essential requirement of an appeal bond, without which completeness in all other particulars becomes utterly vain.

It was not, indeed, a bond payable to the appellees in the judgment, and it did not have the effect to suspend the enforcement of the judgment; it was a nullity.

It is our opinion, therefore, that the supreme court has no jurisdiction of this appeal, and that the proper determination of it is to dismiss the appeal, for that cause.

Appeal dismissed.

[Opinion delivered April 19, 1881.]