General Inv. Corporation v. Carter

This appeal is from a judgment of the county court of Shelby county. On December 21, 1931, the appellee filed a motion to dismiss the appeal, because, among other things, the appeal bond filed by appellant was not in accordance with law, in that the clerk of the trial court had not fixed and properly certified the probable amount of the costs, as required by article 2265, R.S. 1925. On December 31, 1931, the motion came on for consideration. Inspection of the bond showed it to be defective in the particular complained. Accordingingly we sustained the motion to dismiss and gave the appellant ten days in which to file a new bond. January 6, 1932, appellant presented what purported to be a bond in compliance with the order previously entered by the court. This bond was duly objected to by appellee, and we find it to be defective, in that the act of the clerk of the trial court fixing the probable amount of the cost for which appellant should execute its appeal bond was not certified by the clerk of the trial court, but was approved by said clerk and filed in said court. We refused approval of this bond. Now appellant presents us with a third bond, long after the time given for the filing of a new bond has expired, and requests that it be approved and ordered filed.

The motion to file is refused, because, though we do not find it necessary to decide the point, we doubt that we have authority to grant the request, but, if so, then, under article 1840, R.S. 1925, its exercise would be within the sound discretion of the court, Wilson v. Railway (Tex.Civ.App.) 298 S.W. 300, and we do not believe, under the circumstances, it would be a wholesome precedent to grant the request, Wilkes v. Brown (Tex.Civ.App.) 80 S.W. 844; First State Bank Trust Co. v. Mann (Tex.Civ.App.) 209 S.W. 683; Wilson v. Railway (Tex.Civ.App.)298 S.W. 300. When the first bond was found to be defective, we granted at reasonable time in which a new bond could be filed. Within that time a second bond was presented which was as defective as the first. After the time granted had elapsed, a third bond is presented with motion to grant further time for the filing of a new bond, and to approve and order same filed. When, as here, a reasonable time has been granted for the filing of a proper bond, and such is not done within that time, we think the purpose and intent of the law has been met, and the appeal should be dismissed, and it is so ordered.

Dismissed.

WALKER, J., not sitting.