Grogan Mfg. Co. v. Lane, 26867.
| Decision Date | 03 March 1943 |
| Docket Number | No. 26867.,26867. |
| Citation | 169 S.W.2d 141 |
| Parties | GROGAN MFG. CO. v. LANE. |
| Court | Texas Supreme Court |
Suit by Grogan Manufacturing Company against H. E. Lane to recover the merchantable timber on a tract of land, wherein Roscoe Coverson intervened claiming ownership of land upon which timber was situated and that the timber had been sold to the defendant. Upon trial intervener recovered the land, and defendant the timber, and plaintiff attempted to appeal making appeal bond payable to defendant alone. The Court of Civil Appeals dismissed the appeal upon its own motion on ground that bond was insufficient to confer jurisdiction, and plaintiff brings error.
Judgment of the Court of Civil Appeals reversed and cause remanded to Court of Civil Appeals with directions.
Carney & Carney and Tom J. Mays, all of Atlanta, for appellant.
Shelburne H. Glover, of Jefferson, for appellee.
Grogan Manufacturing Company sued H. E. Lane to recover the merchantable timber on a certain tract of land. Roscoe Coverson intervened and alleged that he had owned the land upon which the timber was situated, and that he had sold the timber to Lane and warranted the title thereto. Lane adopted Coverson's pleadings. Upon the trial Coverson recovered the land and Lane the timber, and Grogan Manufacturing Company took nothing. Grogan Manufacturing Company attempted to appeal, but made the appeal bond payable to H. E. Lane alone. The Court of Civil Appeals held that the appeal bond was insufficient to confer jurisdiction on that court, and, upon its own motion, dismissed the appeal and denied the appellant the right to amend the bond. The matter is now before us on application for writ of error.
The holding of the Court of Civil Appeals that the bond was insufficient to confer jurisdiction on that court, in the absence of a motion to dismiss the appeal, is in conflict with the holding of this Court in Hugo v. Seffel, 92 Tex. 414, 49 S.W. 369, 370. In that case Annie Seffel, joined by her husband, Hugo Seffel, sued Schmeltzer and Campbell to enjoin the sale, under execution, of a certain tract of land belonging to Annie Seffel. Judgment was for plaintiffs, and defendants appealed. The appeal bond was made payable to Annie Seffel alone. The transcript was not filed in time, and the Court of Civil Appeals affirmed the judgment on certificate. In the Supreme Court it was contended that the appeal bond was insufficient to confer jurisdiction on the Court of Civil Appeals. This Court held that Hugo Seffel would have been liable for the court costs in the event of a reversal, and was therefore a necessary party to the appeal bond. At that time Revised Statutes Article 1840 read as follows:
"When there is a defect of substance or form in any appeal or writ of error bond, then on motion to dismiss the same for such defect, the appellate court may allow the same to be amended by filing in such appellate court a new bond, on such terms as the court may prescribe."
That Article has been brought forward and is now embodied in Texas Rules of Civil Procedure, rule 430. There was no motion by appellee to dismiss the appeal in the above-cited case, and this Court there said: ...
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United Ass'n of Journeymen & Apprentices of Plumbing & Pipe Fitting Industry of U.S. & Canada v. Borden
...of any sort of instrument which can be said to be a bond and which was filed for the purpose of taking an appeal. See Grogan Mfg. Co. v. Lane, 140 Tex. 507, 169 S.W.2d 141. Although the original bond does not show on its face that it was intended to serve as an appeal bond, there is other e......
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...defect in the bond, for that could be amended and corrected even now and in this court. Rule 430, T.R.C.P.; Grogan Mfg. Co. v. Lane, 140 Tex. 507, 169 S.W.2d 141, 142 (1943). Councilman Hager who seeks to invoke our jurisdiction was not a party except as an official of the City of Beaumont.......
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...to confer jurisdiction upon the appellate court as long as the instrument may be said to be a bond); Grogan Mfg. Co. v. Lane, 140 Tex. 507, 169 S.W.2d 141, 141-142 (1943) In the present proceeding, Smith has presented a notice of appeal file stamped by the Houston appellate court within the......
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Pfeffer v. Meissner
...Shanklin v. Rogers, Tex.Civ.App.1948, 213 S.W.2d 730, and Speckels v. Kneip, Tex.Civ.App., 170 S.W.2d 255, following Grogan Mfg. Co. v. Lane, 140 Tex. 507, 169 S.W.2d 141, on the point that failure to include proper obligees in the appeal bond is not jurisdiction and that absent a timely mo......