Cutbirth v. Knowles , 1932 Tex. App. LEXIS 325 ( 1932 )

This suit was brought by plaintiff upon a petition which alleged his residence to be in Gregg county, Tex., against defendant, J. A. Knowles, and a trial was had at a term of the court beginning on February 22, 1931, and continuing until the 12th day of September, 1931. Judgment was entered against the plaintiff in favor of the defendant on July 24th, and the plaintiffs amended motion for a new trial was overruled by the court on August 29th. To the action of the court in overruling his amended motion for new trial, the plaintiff excepted and gave notice of appeal to this court. Plaintiff's appeal bond was filed September 26th. The transcript and statement of facts were duly filed in this court.

The appellee, J. A. Knowles, has filed in this court a motion to dismiss this appeal for want of jurisdiction on the ground that the appeal bond was not filed within the time allowed by statute.

Appellant, as stated above, alleged in his petition that he resided in Gregg county, Tex., and on the trial he testified that he had been in Longview, in Gregg county, all the time since December preceding the trial. These facts appearing affirmatively in the record, it was incumbent upon the appellant to file his appeal bond within twenty days from the date of the order overruling his amended motion for new trial. Having failed to do so, the appeal will be dismissed for want of jurisdiction.

Appellant has filed in this court an answer to appellee's motion to dismiss this appeal and has attached thereto affidavits to the effect that he is a married man and that his home is in Houston, Harris county, Tex., and seeks thereby to secure an extension of time in which to file his appeal bond from twenty days, as provided for in the statute for residents of the county, to thirty days, the time provided for nonresidents.

We are very familiar with the rule that this court may consider ex parte affidavits in determining its jurisdiction, but the rule is not without its limitations. In Volume 3, Texas Jurisprudence, § 309, pages 438 and 439, the rules applicable in this case are announced as follows:

"1. Affidavits or extrinsic evidence will be received and considered when they present facts affecting the jurisdiction of the appellate court which arose after final determination of the case and which could not have been put in issue in the trial court.

"2. But according to some of the Courts of Civil Appeals the power is limited to matters not appearing of record, and evidence aliunde contradicting the record cannot be considered even when the question of jurisdiction is involved."

These rules are supported by many authorities in this state, and, when they are applied to the facts in this case, there is no escape from the conclusion that the affidavits are not entitled to be considered.

In the case of Sale et ux. v. Gersdorff (Tex.Civ.App.) 189 S.W. 574, it was held that the appellant in that case could not by affidavit change the residence fixed by the record to gain additional time in which to file an appeal bond.

The appeal will be dismissed.