60 S.W.2d 484 | Tex. App. | 1933
For convenience, the parties will be referred to as appellant and appellee.
Appellee’s motion for permission to file and have considered at this term of the. Court of Civil Appeals its motion to affirm on certificate is overruled and refused, for the reason that the motion to affirm on certificate was not filed during the term of this court' to which the appeal was returnable.
Appellant’s writ of error will be dismissed because no writ of error bond was filed in the lower court.
It appears from not only the affidavits filed by appellee, but by the affidavit of the attorney for appellant, that appellant first filed an appeal bond in the court below, thereby perfecting his appeal. Afterward appellant abandoned its appeal and attempted to bring this case before this court by writ of error. Instead of filing a writ of error bond, counsel for appellant went to the district clerk’s office and defaced- the appeal bond and interlined in said bond sufficient words to give this appeal bond the appearance of a writ of error bond.
The appeal bond was .a filed court paper, and by its filing an appeal was perfected. When the appeal was abandoned, it became functus officio, and could not thereafter take the place of a writ of error bond. Articles 2258 and 2265, R. C. S. 1925; Kolp v. Shrader (Tex. Civ. App.) 168 S. W. 464; Mowrey v. Fidelity & Deposit Company of Maryland (Tex. Civ. App.) 251 S. W. 252.
The writ of error will be dismissed.