Ezell v. Knapp & Elliott

• Decision Date: 10 June 1931
• Docket Number: No. 1450-5685.,1450-5685.
• Parties: EZELL v. KNAPP & ELLIOTT.
• Court: Texas Supreme Court

39 S.W.2d 829

EZELL v. KNAPP & ELLIOTT.

No. 1450-5685.

Commission of Appeals of Texas, Section A.

June 10, 1931.

Certified Questions from Court of Civil Appeals of Eleventh Supreme Judicial District.

Action by Knapp & Elliott against T. A. Ezell. Plaintiff recovered judgment in justice court, and defendant appealed to the county court. From a judgment of the county court quashing the appeal bond and denying permission to file a new and amended bond and dismissing the case, defendant appealed to the Court of Civil Appeals (40 S. W.(2d) 1110), which certifies questions.

First question answered.

Beall & Beall, of Sweetwater, for appellant.

T. Vard Woodruff, of Sweetwater, for appellee.

SHARP, J.

This cause is before the Supreme Court upon the following certificate from the honorable Court of Civil Appeals of the Eleventh District:

"The above cause is pending in this court on motion for rehearing. Appellees recovered a judgment against appellant in the Justice Court of Precinct No. 1, Nolan County. Within due time appellant filed with the justice of the peace an appeal bond, which was approved by him, and a transcript of the proceedings in the justice court prepared and filed in the County Court of Nolan County. After the case was filed in the County Court appellees filed a motion to quash the appeal bond and dismiss the appeal on the ground that the bond was defective. Before this motion was acted upon in that court appellant filed his motion for permission to file a new and amended bond. The court overruled appellant's motion, but sustained the motion of appellees and entered its judgment quashing the appeal bond, dismissing the cause and adjudging all costs in the county court against appellant. The appeal is from that judgment.

"Omitting formal parts, the motion to dismiss was as follows:

"`1. Plaintiffs would show to the Court that the purported appeal bond filed herein by the defendant does not comply with the provisions of article 2456, Revised Statutes of 1925, in that said appeal bond is not in double the amount of the judgment; said judgment in said Justice Court having been for the sum of $179.80, together with interest thereon from July 13, A. D., 1928, at the rate of six per cent per annum. Judgment was rendered on March 1, 1929, and the interest on said amount up to March 1, 1929, amounted to the sum of $6.75, thereby making the true and correct amount of said judgment the sum of $186.55. That said purported appeal bond is for the sum of only $359.60, when under the law, in order to support an appeal to this court said bond should be for the sum of at least $373.10. * * *

"`2. Plaintiffs would further show to the court that the purported appeal bond filed herein by the defendant is not made payable to all the appellees as required by law, in that the said bond is payable to Knapp & Elliott, whereas, T. K. Knapp and Frank Elliott are the appellees herein, and there being no such person in law as Knapp & Elliott.

"`Wherefore, plaintiffs say that said purported appeal bond is insufficient in law to support an appeal to this court, and they ask that said bond be quashed and this appeal be dismissed.'

"In the case of Briggs et al. v. Buckner, 19 S.W.(2d) 190, it was held by the Texarkana Court of Civil Appeals that Art. 1840, R. S., 1925, providing that courts may allow defective appeal bonds to be amended, applies only to appeals to courts of civil appeals. Some of the members of this court question the correctness of the conclusions announced in that case. We therefore deem it advisable, on motion of appellees, to certify to Your Honorable Court the following questions:

"`1. Are the provisions of article 1840, R. S. 1925, applicable to an appeal from the justice court to the county court?

"`2. If not, has the county court the power, independent of any statutory provisions, to permit the filing of an amended bond to cure such defects as are pointed out in the motion above copied?'"

As shown by the foregoing certificate, the construction of article 1840, R. S. 1925, is involved. A brief history of the matters embraced within article 1840 will be helpful in reaching a decision.

The old article 1025 in the Revised Statutes of 1895 reads: "When there is a defect of substance or form in any appeal or writ of error bond, on motion to dismiss the same for such defect the court may allow the same to be amended by filing in the said courts of civil appeals a new bond, on such terms as the court may prescribe."

Article 1025 was brought forward in the codification of the laws as article 1609 in the Revised Civil Statutes of 1911.

In 1905 the Legislature adopted the following: "When an appeal has been or shall be taken from the judgment of any of the courts of this State by filing a bond or entering into a recognizance within the time prescribed by law, in such cases and it shall be determined by the court to which appeal is taken that such bond or recognizance is defective in form or substance, such appellate court may allow the appellant to amend such bond or recognizance by filing a new bond on such terms as the court may prescribe." Acts 1905, c. 115, § 1.

The foregoing act, enacted by the Legislature in 1905, above quoted, was brought forward as article 2104 in the codification of the Revised Statutes of 1911.

In 1925 the statutes of this state were again codified and adopted by the Legislature and known as the Revised Civil Statutes of Texas. As a result of the work of the codifiers, article 1840 R. S. 1925 was adopted and reads: "When there is a defect of substance or form in any appeal or writ of...