Kolp v. Shrader , 168 S.W. 464 ( 1914 )

On February 28, 1913, plaintiffs in error suffered an adverse judgment in the county court of Tarrant county, and on March 14th thereafter perfected an appeal to this court by filing a bond with sureties and conditioned for the payment of costs of suit, etc., as provided in article 2097, Revised Statutes. The record was duly filed in this court on June 4, 1913, and thereafter on the same day plaintiffs in error filed their motion to have their said appeal dismissed on the ground that the judgment was not a final one. On June 14, 1913, the motion to dismiss the appeal was granted. The motion, however, was granted without a consideration or determination of the question of the finality of the judgment; the dismissal being placed upon the ground merely of appellants' request therefor. On the 17th day of February, 1914, the former appellants filed in said county court their petition for the writ of error before us, and caused the issuance and service of citation in error, but gave no other or further bond than as hereinbefore stated. The transcript in error was filed in this court on the 11th day of April, 1914, and defendant in error has moved to dismiss the writ.

We think the motion should be sustained and the writ of error dismissed. Appeals are prosecuted by giving the necessary notice of appeal in open court, and by filing the necessary bond within 20 days after the expiration of the term, or within 20 days after notice of appeal is given as the case may be, as required by article 2084, Revised Statutes.

In cases where no appeal has been taken, writs of error may be prosecuted at any time "within twelve months after the final judgment is rendered and not thereafter." See article 2086, Revised Statutes. Article 2089, however, provides that in cases where a writ of error is taken "the plaintiff shall also, at the time of filing such petition, file with the clerk a writ of error bond, or affidavit in lieu thereof."

The bond relied upon as supporting the writ of error now before us is the bond formerly given by plaintiffs in error in an effort to prosecute an appeal, and the question is, Will such bond give this court jurisdiction to review the merits of the case? The cost bond on appeal or writ of error in terms is the same, so that no objection can be made to the mere form of the bond under consideration, but the record shows that on the dismissal of the appeal, as hereinbefore stated, all the costs of this court were duly paid, and in our opinion the obligation of the sureties then ceased. The bond was no longer operative, and its appearance in the record below cannot be made to supply the requirement of the statute that the plaintiff at the time of the filing of his petition for writ of error shall also file a bond. Plaintiffs in error present affidavits on the part of the sureties that they intend the bond under consideration to also be operative in the prosecution of this writ of error, but no argument will be needed, we feel sure, for the conclusion that neither the affidavits nor expressed intention of the sureties can revive the legal effect of a bond that has become functus officio, or made to supply a necessary requirement of the statute.

Plaintiffs in error request, however, that they now be permitted to file sufficient writ of error bond. Article 2104 of the Revised Statutes provides that:

"When an appeal has been or shall be taken from the judgment of any of the courts of this state by filing a bond or entering into a recognizance within the time prescribed by law in such cases, and it shall be determined by the court to which appeal is taken that such bond or recognizance is defective in form or substance, such appellate court may allow the appellant to amend such bond or recognizance by filing a new bond on such terms as the court may prescribe."

In Hugo v. Seffel, 92 Tex. 414, 49 S.W. 369, it was expressly held that since the enactment of the law above quoted a defective appeal bond was sufficient to give the appellate court jurisdiction. To the same effect is the case of Williams v. Wiley, 96 Tex. 148, 71 S.W. 12, wherein a writ of error had been prosecuted. While in the latter case the court suggests a doubt of whether or not with the statute quoted in force it should be longer held that the jurisdiction of an appellate court depends at all upon the giving of a bond, the question was not in fact decided, and we cannot bring our minds to the conclusion that the statute permitting an amendment of an appeal bond should be so extended as to permit the filing of an appeal or writ of error bond in this court for the first time. To do so is evidently to entirely nullify the article of the statute which requires the party prosecuting an appeal to file an appeal bond within 20 days after the rendition of a judgment, or to file his bond, in cases of writs of error, at the same time that he files his petition therefor. There should at least be an attempt to comply with the statute regulating appeals and writs of error. When this is done, though the bond may prove to be defective in form or substance, the jurisdiction of the appellate court attaches, and we then, but not otherwise, may permit the appealing party to remedy the defect.

We conclude that the motion to dismiss the writ of error should be sustained; and it will be so ordered.