Edens v. Cleaves

This action was instituted in the probate court by appellees to probate the will of W. E. Rhoton, deceased. The probate was contested upon the ground of unsound mind and undue influence. The will was probated, and an appeal was taken to the district court; and from the judgment sustaining the probate there, notice of appeal was given and bond was filed for appeal to this court.

March 21, 1918, upon hearing, we rendered an opinion affirming the proceedings, published in 202 S.W. 355. An application was thereafter filed in the Supreme Court for a writ of error. On October 17, 1918, this application was dismissed for want of jurisdiction, and, during the pendency of this application for writ of error before the Supreme Court, appellees filed their motion in this court to dismiss the appeal, and to withdraw the opinion affirming the case and to strike the cause from the docket, upon the ground that this court did not acquire jurisdiction, for the reason that the appeal bond was not filed in the district court within 20 days after adjournment of said court, as provided by article 2084, Revised Civil Statutes of Texas.

The cause was tried at the May term of the Sixty-Fifth district court, 1917, which term could not continue more than 8 weeks, and which was in fact adjourned June 28, 1917. The appeal bond, sought to be made the basis of the appeal, was filed July 27, 1917, so the bond was not filed within 20 days after the expiration of the term; therefore this court has not acquired jurisdiction of this appeal. Hartsough-Stewart Construction Co. et al. v. Harty Vogelsang, 183 S.W. 1. The opinion heretofore rendered is for that reason withdrawn. That the fact that this motion is filed at a subsequent term is not an objection to such action, see Nunez v. McElroy, 184 S.W. 531, and authorities there cited. The jurisdictional facts above noted did not clearly appear in the original transcript, but were brought to our attention by amended transcript since the opinion was written.

The appeal is dismissed.