Franklin Fire Ins. Co. v. Shadid ( 1931 )

RANDOLPH, J.

This is an appeal from the county court of Gray county. It appears from the record and from the amount in controversy that the case was an appeal to that court from the justice court of Gray county. There is no regularly certified transcript from the justice court shown in this case. It is true that there is a copy of the citation in the case filed in justice court, Precinct No. 5 of Gray county, and the return of the constable of that precinct, showing service of the same, but there is no certificate of the justice attached showing a complete transcript from the records of his court.

The plaintiff recovered judgment in the county court, from which an appeal has been taken to this court. There is no appeal bond shown in the transcript from the justice court to the county court, and the county court, so far as this record is concerned, had no jurisdiction to try same; consequently this court has no jurisdiction to entertain this appeal. Ringgold v. Graham (Tex. Com. App.) 13 S.W.(2d) 355, and authorities therein cited.

The statutes of Texas provide for an appeal from a money judgment in the justice court, as follows:

Article 2456 (Rev. St.). Appeal bond. “The party appealing, his agent or attorney, shall within ten days from the date of the judgment, file with the justice a bond, with two or more good and sufficient sureties, to be approved by the justice, in double the amount of the judgment, payable to the appellee, conditioned that appellant shall prosecute his appeal to effect, and shall pay off and satisfy the judgment which may be rendered against him on appeal. When such bond has been filed with the justice, the appeal shall be held to be thereby perfected and all parties to said suit or to any suit so appealed shall make their appearance at the next term of court to which said case has been appealed without further notice.”

An appeal bond, where one is required by law, is essential to the jurisdiction of the appellate court, and where one is given that is defective, and not in compliance with the statutory requirements, no jurisdiction is vested in the court appealed to. Halloran v. Texas & N. O. Ry. Co., 40 Tex. 466; Munzesheimer v. Wickham, 74 Tex. 638, 12 S. W. 751; McCarthey v. North Texas Loan Co. (Tex. Civ. App.) 101 S. W. 267; St. Louis, etc., Ry. Co. v. Warren Bros. (Tex. Civ. App.) 100 S. W. 1144.

There toeing no transcript duly certified to in the record showing the proceedings in the justice court, including the judgment, and no appeal bond. for the appeal to the county court toeing shown in the record in this court, the county court had no jurisdiction.

The question here presented is: Did the county court of Gray county have jurisdiction of the appeal from the justice court? This must toe made to appear by a filing in due time in the county court of Gray county of such certified transcript from the justice court, including a copy of the judgment of that court and also the filing of an appeal bond from the justice court in that court.

If such were filed in due time in such county court, but were omitted from the transcript, then such omission may be supplied by certiorari. If such justice court records are not on file in the county court, then that court had no jurisdiction, and the appeal to this court will be dismissed.

We therefore withdraw the submission of this case in order to give appellant until November 25, 1931, time in which to correct the record in this cause, and, in the event such certiorari is not filed and said records produced in a supplemental transcript in this court, this appeal will be dismissed.

The clerk of this court will therefore issue notice to the attorneys for appellant in this cause, and the attorneys for appellee in this cause, notice that this correction must be made within the time indicated above, and the resubmission of this case Is ordered for November 25, 1931.