McMahon v. Maddox

BUCK, J.

At a former day of this term, we had before us a motion by appellee to dismiss the appeal for want of jurisdiction. We overruled said motion at that time, but it is urged again in appellees’ brief. And we have again considered the motion, and have concluded that we erred formerly in overruling it.

The grounds of the motion are as follows:

This cause was tried in the district court of Montague county, whose term, under the law, may continue not longer than 6 weeks. The term at which this cause was tried ended on May 15, 1926. The appellant, H. E. McMahon, was a nonresident of the county, living at Gainesville, Cooke county. 1-le filed his bond on June 14, 1926, just 30 days after the adjournment of the term of court. Was the appeal bond filed in time to perfect the appeal? Does article 2253 of the 1925 Civil Code 'provide that an appellant, who is a nonresident of a county, shall have 30 days, 20 days, or only 2 days after the adjournment of the term of court, in which to file his appeal bond from a judgment of a court that may not continue more than 8 weeks?

Article 2253 reads as follows:

“In cases where an appeal is allowed, the appellant shall give notice of appeal in open court within two days after final judgment, or two days after judgment overruling a motion for a new trial, which notice shall be noted on the docket or record in the minutes of the courts and filed with the clerk together with an appeal bond or affidavit in lieu thereof as provided by law. Such bond or affidavit shall be filed with the clerk of the trial court within twenty days after the expiration of the term or after notice of appeal is given when the term continues by law more than eight weeks, if the party taking the appeal resides in the county, and within thirty days, if he resides out of the county.”

The article before the 1925 revision, being article 2084, Revised Statutes 1914, was as follows:

“An appeal may, in cases where an appeal is allowed, be taken during the term of the court at which the final judgment in the cause is rendered by the appellants giving notice of appeal in open court within two days after final judgment. or two days after judgment overruling a motion for a new trial, which shall be noted on the docket and entered of record, and by his filing with the clerk an appeal bond, where bond is required by law, or aflidavit in lieu thereof, as hereinafter provided, within twenty days after the expiration of the term. If the term of the court made by law continue more than eight weeks, the boncl or affidavit in lieu thereof shall be filed within twenty days after notice of appeal is given, if the .party taking the appeal resides in the county, and within thirty days, if he resides out of the county.”

It will be noted that the expression “vyithin 20 days after the expiration of the term,” at the close of the first sentence of the old statute, is omitted from the present statute. Under the former statute it has been held a number of times that a nonresident appellant had only 20 days in which to file his appeal bond after adjournment of a term of court which might not, by law, continue more than 8 weeks. See Brown v. Allen, 135 S. W. 601, by the Austin Court of Civil Appeals ; Simpson v. Baker, 57 Tex. Civ. App. 460, 122 S. W. 959, by the Galveston Court of Civil Appeals; and Nash v. Noble, 52 Tex. Civ. App. 425, 114 S. W. 848, also by the Galveston Court of Civil Appeals. If this construction of the statute be correct, and we think it is, it follows that the time in which an appeal bond must be filed in this case is determined by the provisions of the first sentence in both statutes; that the last sentence has reference only to the time in which the appeal bond must be filed, where the court may continue longer than 8 weeks. Apparently, the expression “within 20 days after the expiration of the term” was omitted from the present statute by mistake or inadvertence of the codifiers or the printers. We are not inclined to impute to the Legislature the intention of cutting down the time in which the appeal bond may be filed to 2 days, after many years during which a 20-day period was allowed, without some evidence of such intention. Therefore we would be inclined to hold that the 1914 statute, in so far as it provided that the appeal bond, or aflidavit in lieu thereof, should be filed “within twenty days after the expiration of the term,” was not intended to be repealed, and was not repealed by the passage of the new statute. But in the present case the bond was not filed within 20 days, and, even under the old law, it would not have been filed in time, where the term of the court may continue not more than 8 weeks.

We conclude that the appeal bond was not filed in due time, and that this court obtained no jurisdiction to hear and determine the cause. Therefore the order heretofore made overruling the motion to dismiss the appeal is set aside and vacated, and the appeal in this cause is accordingly dismissed.