Merkel v. Garrett

Per Curiam.

— In this case relators seek by writ of mandamus to compel the clerk of this court to file in this court the record on appeal in the case of Henrietta Merkel et al., v. Houston, Oak Lawn and Magnolia Park Eailroad Company, which the cleric has refused to file on the ground that the appeal has not been perfected so as to give this court jurisdiction.

The case was tried at a term of the District Court of Harris County, which by law might continue in session more than eight weeks. Motion for a new trial was overruled and notice of appeal given February 3, 1910. The appeal bond was filed February 34, 1910. The statute (Art. 1387, Rev. Stats.) clearly provides that if the court in which the case is tried may by law continue more than eight weeks, in order to perfect the appeal the appeal bond must be filed within twenty days after notice of appeal is given, unless the appellant resides out of the county, which is not claimed to be the case here. The language of the statute is so plain as to leave no room for doubt as to its meaning. The 'appeal bond was not filed in time, and the clerk acted properly in refusing to file the record. The writ of mandamus is refused.

Mandamus Refused.