264 S.W. 630 | Tex. App. | 1924
Upon the facts stated, our duty to sustain the motion and dismiss the writ of error would seem to be plain. In view of the large judgment and the earnest effort to sustain our jurisdiction, however, we will briefly discuss the case. The privilege of requiring an appellate court to review the proceedings of a trial court is dependent upon legislative grant and regulation. In this state the Legislature has provided by article 2084, Rev. Statutes, that:
"An appeal may, in cases where an appeal is allowed, be taken during the term of the court at which the final judgment in the cause is rendered by the appellants giving notice of appeal in open court within two days after final judgment, or two days after judgment overruling a motion for a new trial, which shall be noted on the docket and entered of record, and by his filing with the clerk an appeal bond, where bond is required by law, or affidavit in lieu thereof, as hereinafter provided, within twenty days after the expiration of the term."
Amended article 2086 provides that:
"The writ of error may, in cases where the same is allowed, be sued out at any time within six months after the final judgment is rendered and not thereafter."
Article 2087 reads:
"The party desiring to sue out a writ of error shall file with the clerk of the court in which the judgment was rendered a petition in *631 writing signed by him or by his attorney, and addressed to such clerk."
The next article (2088) prescribes the requisites of the petition, and article 2089 reads:
"The plaintiff [in the writ] shall also, at the time of filing such petition, file with the clerk a writ of error bond, or affidavit in lieu thereof, as hereinafter provided."
Article 2097 prescribes the terms of a cost bond on appeal or writ of error, and the next article provides that in cases where a party is unable to pay the cost of appeal, or give security therefor, he may make affidavit of his inability to do so, and thus be entitled to prosecute his appeal.
Article 2099 reads:
"When the bond, or affidavit in lieu thereof, provided for in the two preceding articles, has been filed and the previous requirements of this chapter have been complied with, the appeal or writ of error, as the case may be, shall be held to be perfected."
It has been expressly held that a failure to give bond as required by articles 2084 and 2097, or, in lieu thereof, an affidavit as required by article 2098, leaves this court without jurisdiction. See Railway Co. v. Whatley,
In Carwile v. William Cameron Co.,
In the case of Mowrey v. Fidelity Deposit Co. of Maryland,
We must hold, therefore, that the cost bond filed as an appeal bond on July 20, 1922, cannot be treated as the bond required for the prosecution of the writ of error, and that hence (no writ of error bond having been filed) it cannot be treated as coming within article 2104, Rev. Statutes, which authorizes *632
this court to permit an appellant or plaintiff in error to amend a bond held to be defective in form or substance. See Kolp v. Shrader (Tex.Civ.App.)
We conclude that the motion to dismiss the writ of error must be sustained and the writ dismissed.