Shield v. First Coleman Nat. Bank of Coleman

The trial court being one whose term was limited by statute to five weeks, Acts 1939, 46th Leg., H.B. No. 341, Sec. 2, Chap. 10, p. 171, Vernon's Ann.Civ.St. art. 199, District 119, it was necessary that appeal bond be filed "within twenty days after the expiration of the term." R.C.S. Art. 2253, as amended by Acts 1927, 40th Leg., p. 21, Chap. 15, Sec. 1, Vernon's Ann.Civ.St. Art. 2253; Webster Son v. Lucas, 117 Tex. 64, 296 S.W. 1089; Haralson v. Wheeler, Tex. Civ. App.57 S.W.2d 248.

The term expired February 10, 1940. The appeal bond was not filed until March 7, 1940. It was therefore filed too late.

Filing of the bond within the statutory time is jurisdictional and cannot be waived. Neither can jurisdiction be invoked by agreement of the parties, 3 Tex.Jur., p. 326, Sec. 224. Nor can jurisdiction be conferred by consent or waiver of objections, 3 Tex.Jur., p. 80, Sec. 33.

It appears, however, from appellant's replication to the motion that appellant filed a pauper's oath under Art. 2266, on February 28, 1940. On the same date the clerk and appellee jointly filed a contest to the affidavit. This was set down by the court for hearing on April 4, 1940. In the meantime the pauper's oath and contest thereof were withdrawn by attorneys representing appellant and appellee, and no hearing was actually had on the contest. This withdrawal appears to have been under mutual mistake of attorneys for the respective parties that appellant had thirty days in which to file the appeal bond, and that its filing on March 7th was in time. Under these circumstances, we are entering an order giving appellant thirty days from this date within which to perfect the record so as to show jurisdiction of this court under the pauper's oath. This showing should be by certificate of the clerk, including the pauper's oath, the contest thereof, the hearing of the contest, and the judge's finding thereon. This will, of course, necessitate a resetting of the contest for such hearing.