Johnson v. Gibson Bros. , 240 S.W. 667 ( 1922 )

Unless the recitals in the appeal bond from the justice court to the county court should be treated as sufficient evidence of the fact, there is nothing in the record sent to this court affirmatively showing that the county court had jurisdiction of the cause. It has been held that such recital cannot be treated as such evidence. American Soda Fountain Co. v. Mason, 55 Tex. Civ. App. 532, 119 S.W. 714; Consumers' Fertilizer Co. v. Badt (Tex.Civ.App.) 157 S.W. 226. As this court is without power to review the judgment of the county court unless it so appears that that court had jurisdiction of the cause in which the judgment was rendered (Ware v. Clark, 58 Tex. Civ. App. 356, 125 S.W. 618; Wells v. Driskell,105 Tex. 77, 145 S.W. 333), it cannot entertain the appeal. As it cannot, it has only to determine the course it should pursue with reference thereto. Appellees suggest that action by this court should be postponed until they have had an opportunity to supply evidence necessary to show that the county court had jurisdiction, after notice given as provided in rule 1 (142 S.W. x) for the government of Courts of Civil Appeals, and refer to Wells v. Driskell, supra, as indicating that to be the proper practice.

But we think neither the rule invoked nor the case cited supports appellees' view; for the notice provided for in the rule is to be given to the appellant, not to the appellee, and it was the appellant in Wells v. Driskell whom the Supreme Court held to be entitled to the notice, not the appellee. If the county court acquired jurisdiction of appellees' appeal from the justice court it was appellees' duty to show it. Clark v. Maund (Tex.Civ.App.) 216 S.W. 257. Appellants' motion in the county court to dismiss that appeal was predicated on appellees' failure to discharge that duty, and appellants' appeal to this court is predicated on the action of the county court in overruling their motion and rendering a judgment it did not appear, because of appellees' failure to discharge their duty, it had power to render. The proper course for this court to pursue, we think, is to reverse the judgment of the county court and remand the case, with instructions to that court to dismiss it, unless its jurisdiction is properly made to appear (Perry v. Greer, 110 Tex. 549, 221 S.W. 931; Fruit Dispatch Co. v. Rainey [Tex. Sup.] 232 S.W. 281; Patrick v. Pierce, 107 Tex. 620, 183 S.W. 441); and it will be so ordered.