Edwards v. Morton

• Citation: 46 S.W. 792
• Parties: EDWARDS v. MORTON.
• Decision Date: 20 June 1898
• Court: Supreme Court of Texas

46 S.W. 792

EDWARDS v. MORTON.

Supreme Court of Texas.

June 20, 1898.

Certified questions from court of civil appeals of Second supreme judicial district.

Action by F. M. Morton against E. Edwards. From a judgment for plaintiff, defendant appealed to the court of civil appeals, which certified questions to this court. Answered in favor of plaintiff.

Hinton Smith, for appellant. R. Cobb, for appellee.

BROWN, J.

The court of civil appeals for Second supreme judicial district has certified to this court the following statement and questions: "This suit was instituted in the justice's court by F. M. Morton against E. Edwards upon a promissory note for $146.25. He recovered judgment in that court for the sum of $60.61 and costs of suit (amounting to $5.20), the amount of the claim being thus reduced on account of a credit of $75 being allowed as claimed by defendant, Edwards; all of which appears from the recitals in the judgment. On the day the judgment was rendered Morton filed with the justice of the peace an appeal bond in the sum of $15. A transcript was at once made out by the justice of the peace, and filed, within 10 days after the judgment, in the county court, where a motion was made by Edwards to dismiss the appeal because the appeal bond was insufficient in amount, which motion was by the court overruled; and to this action the first error is assigned on appeal to this court, the judgment here appealed from having been rendered in the county court in favor of Morton against Edwards for the full amount sued for. No notice of appeal from the justice to the county court is shown. It being manifest that the appeal bond filed in the justice's court was insufficient in amount, the question arises, since the decisions of your honors in Yarbrough v. Collins (Tex. Sup.) 42 S. W. 1052, and in Houston & T. C. R. Co. v. Red Cross Stock Farm (Tex. Sup.) 45 S. W. 375, overruling, in effect, the previous decision made by this court in Bell v. Brown (Tex. Civ. App.) 33 S. W. 303, whether, in the state of case above given, Morton was required, in taking an appeal from the justice to the county court, to give any appeal bond, the case being unlike the one stated in Houston & T. C. R. Co. v. Red Cross Stock Farm, supra, in that, besides denying a recovery to the extent of the credit allowed, the court rendered judgment in favor of Morton for a specified amount, and rendered no judgment against him for costs, but it seems to be covered by the logic of the opinion in that case. We therefore deem it advisable to certify to your honors for decision whether the rule of construction announced in Houston & T. C. R. Co. v. Red Cross Stock Farm should be applied to the case at bar. And, if so, whether in appeals from the justice to the county court, where your honors hold that no bond is required, it is necessary to give notice of appeal. And, if not necessary, then how is an appeal taken in such cases, and when is it perfected?"

To the first question we answer that the rule announced in the case of Houston & T. C. R. Co. v. Red Cross Stock Farm (Tex. Sup.) 45 S. W. 375, applies to this case. Section 19 of article 5 of the constitution of 1895 reads as follows: "Appeals to the county courts shall be allowed in all cases decided in justices' courts when the judgment is for more than twenty dollars, under such regulations as may be prescribed by law." We held in Houston & T. C. R. Co. v. Red Cross Stock Farm, cited above, that this section of the constitution, together with article 1668 of the Revised Statutes, secures the right of appeal to all parties when the judgment or the amount in controversy comes within the terms of the constitution. The right of appeal cannot de denied by the legislature, but may be regulated by laws prescribing the manner in which such appeals shall be prosecuted. Article 1670 of the Revised Statutes of 1895 requires bond to be given in case the judgment is rendered for some amount. This refers to those judgments which are rendered against the appellant, and not to...