Missouri, K. & T. Ry. Co. of Texas v. Bland

• Decision Date: 21 April 1909
• Citation: 119 S.W. 911
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS v. BLAND et al.
• Court: Texas Court of Appeals

119 S.W. 911

MISSOURI, K. & T. RY. CO. OF TEXAS v. BLAND et al.

Court of Civil Appeals of Texas.

April 21, 1909.

Rehearing Denied May 26, 1909.

Appeal from Williamson County Court; T. J. Lawhon, Judge.

Action by Howard Bland and Roy Bland against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment in a justice's court for plaintiffs, defendant appealed to the county court, and the appeal was dismissed, and defendant appeals. Judgment of the county court affirmed.

Luther Nichels, for appellant. H. S. Smith and R. L. Penn, for appellees.

KEY, J.

This is an appeal from a judgment of the county court dismissing an appeal from a justice of the peace court. The original papers and an unauthenticated transcript of the proceedings in the justice's court were filed in the county court on November 22, 1907. When the case was reached and called for trial at the next term of the county court, it was discovered that the transcript from the justice's court was not certified by the justice of the peace. The defendant suggested the defect and made application for a writ of certiorari to the justice of the peace, requiring him to file in the county court a properly authenticated transcript. It was then agreed that the case should be continued for the term in order to have the justice of the peace certify to the correctness of the transcript, and the defendant withdrew its application for a writ of certiorari. At the March term, 1908, the case was continued by agreement and was called for trial at the June term at an agreed setting, which was June 16th. The plaintiffs then presented a motion to dismiss the case, asserting that the county court had no jurisdiction, because there was no properly certified transcript sent up by the justice of the peace. The court sustained the motion and entered a judgment dismissing the appeal. When the motion to dismiss was presented, the defendant presented an application for a writ of certiorari to the justice of the peace, requiring him to send up a proper transcript, which application was overruled.

We are of the opinion that the trial court made the proper disposition of the case. The appellate jurisdiction of the county court is fixed by section 16, art. 5, of the Constitution, as follows: "They shall have appellate jurisdiction in cases civil and criminal of which justices courts have original jurisdiction, but of such civil cases only when the judgment of the court appealed from shall exceed twenty dollars, exclusive of costs, under such regulations as may be prescribed by law." Before any court can be required to exercise its functions, it must be made to appear that it has jurisdiction of the subject-matter, and the burden rests upon one of the litigants to make that appear. When it is sought to transfer a case from one court to another by...