Houston & T. C. Ry. Co. v. Bounds ( 1925 )

This case originated in the justice's court, where appellee recovered a judgment against appellant for $150. The case was transferred to the county court, where it was again tried, resulting in a judgment in favor of appellee against appellant for $154.09, from which judgment appellant duly perfected its appeal to this court, and presents the case here for reversal upon 12 assignments of error. Appellee has filed no brief.

As we view this case, we are not at liberty to consider any of appellant's assignments. It is well settled in this state that the jurisdiction of the trial court to hear the cause must affirmatively appear from the transcript on appeal. Ware v. Clark, 58 Tex. Civ. App. 356,125 S.W. 618, and cases cited. It is also well settled in this state that, in order for the county court to acquire jurisdiction of a case appealed from a justice's court, in cases where an appeal bond is required, the party appealing shall within ten days from the date of the judgment file with the justice a bond, to be approved by said justice of the peace. Article 2393, Vernon's Ann.Civ.St. Supp. 1918; Brown v. Mataska (Tex.Civ.App.) 262 S.W. 932; Piquero Smith v. Carlin (Tex.Civ.App.) 208 S.W. 956. And if the county court acquired no jurisdiction in this case, then its judgment is void, and an appeal therefrom conferred no jurisdiction upon this court.

The transcript from the county court to this court shows an appeal bond from the justice's court to the county court, regular in form, and signed by the requisite number of sureties, and shows said bond was filed in the county court, but fails to show said bond was either filed in the justice's court or approved by the justice of the peace. As far as we may know from the record, said bond may never have been presented to the justice of the peace for approval and filing, and may never have become a justice court paper, but presented for the first time for filing to the clerk of the county court. We are not at liberty to presume that the county court had jurisdiction. American Soda Fountain Co. v. Mason,55 Tex. Civ. App. 532, 119 S.W. 714. But such fact must affirmatively appear from the transcript on appeal. Though there is no assignment complaining of this defect, yet the matter, being jurisdictional, is fundamental in its nature, and must be noticed without an assignment.

The transcript to this court failing to show that the trial court had any jurisdiction, and so failing to show that this court has any, the judgment of the county court is reversed, and the cause remanded to the county court, with instructions to the county court, unless the jurisdictional facts of said court are made to appear to said court, to dismiss the appeal from the justice's court, and to issue a writ of procedendo to the justice's court, directing him to proceed with the execution of the judgment rendered in said justice's court. The costs of this appeal are assessed against appellant.