Taylor v. State , 1884 Tex. Crim. App. LEXIS 144 ( 1884 )

White, Presiding Judge.

Prosecution was commenced in this case by complaint tiled in a justice’s court, charging appellant with unlawfully carrying a pistol. Defendant was tried, and his punishment assessed at a fine of twenty-five dollars, in the justice’s court. He appealed to the county court, where his appeal was dismissed because of insufficiency of his appeal bond, and he nas appealed to this court from the judgment of the county court dismissing his appeal in that court.

A motion is now made by the Assistant Attorney General to dismiss the appeal in this court because this court has no jurisdiction, inasmuch as the fine, exclusive of costs in the justice’s court, did not exceed one hundred dolía,rs.

It is provided by the sixteenth section of article five of the Constitution that in all appeals from justices’ courts there shall be a trial de novo in the county court, and when the judgment rendered or fine imposed by the county court shall not exceed one hundred dollars the trial shall be final,” Had there been a trial de novo and a fine of less than one hundred dollars, then such trial would have been final, and this court would have had no jurisdiction on this appeal. But there was no trial de novo in the county court; the appeal was dismissed, without a trial, for supposed errors in the appeal bond. “ The limitation imposed by Section 16, Article 5, of the Constitution, on appeals from the county court in causes appealed from a justice’s court, applies only when there has been a trial de novo on the merits and the recovery was less than one hundred dollars. An appeal lies to the Court of Appeals from a judgment of the county court dismissing an appeal from a justice’s court where the amount of the judgment was for more than twenty dollars. (Pevito v. Rodgers, 52 Texas, 581.)

The motion of the Assistant Attorney Genera* to dismiss this appeal is not well taken, and is overruled.

Did the county court err in dismissing the appeal from the justice’s court because the appeal bond was insufficient and defective? Two objections were made to the bond in the motion to dismiss, viz: 1. Because George Tayior, the principal, had signed his name in the centre instead of at the end of the bond. 2. Because the bond did not show that it had been approved by the justice trying the case below.

“ In order to bind a party to a written contract it is not necessary that his signature should appear at the end of it. If he writes his name in any part of the agreement it may be taken as his signature, provided it was there written for the purpose of giving authenticity to the instrument, and thus operating as a signature.” (Fulshear v. Randon, 18 Texas, 275.)

Hor was the second ground of the motion well taken. In Dyches v. The State, 24 Texas, 266, it was held that “the statute requiring the justice to approve the bond taken by him from a party held to appear in the district court, etc., is directory, and the bond is not a nullity because the magistrate neglects to endorse his approval on it. The approval may well be inferred from his return of the bond to the district court.” (Doughty v. The State, 33 Texas, 1; Cundiff v. The State, 38 Texas, 641.)

Because the county court erred in dismissing the appeal from the justice’s court, for supposed defect in the appeal bond, the judgment is reversed and the cause remanded for a trial denovo on its merits.

Reversed and remanded.

Opinion delivered June 21, 1884.