Rankin v. Nash-Texas Co., 11455.

• Decision Date: 25 March 1933
• Docket Number: No. 11455.,11455.
• Parties: RANKIN et al. v. NASH-TEXAS CO. et al.
• Court: Texas Court of Appeals

Page 902

58 S.W.2d 902

RANKIN et al. v. NASH-TEXAS CO. et al.

No. 11455.

Court of Civil Appeals of Texas. Dallas.

March 25, 1933.

Appeal from District Court, Dallas County; Claude M. McCallum, Judge.

Action by Mrs. Ann Elizabeth Walsh Rankin and others against the Nash-Texas Company and others. From a judgment for defendants, plaintiffs appeal, and defendants move to dismiss the appeal and to strike from the record the statement of facts.

Motions to dismiss the appeal and to strike from the record the statement of facts overruled.

Callaway & Reed, of Dallas, for appellants.

McCormick, Bromberg, Leftwich & Carrington and Leachman & Gardere, all of Dallas, for appellees.

LOONEY, Justice.

E. G. Rankin and Mrs. E. G. (Ann Elizabeth Walsh) Rankin appealed, in forma pauperis, from a judgment rendered in the 101st district court of Dallas county that they take nothing by their suit against Nash-Texas Company and/or Automotive General Corporation and E. S. Euless, defendants. The motion of appellants (plaintiffs below) for a new trial was overruled December 2, 1932. On December 15th they filed an affidavit stating their inability, singly or jointly, to pay the costs of appeal, any part thereof, or to give security therefor; within ten days (December 23d) Nash-Texas Company, appellee, contested said affidavit before the court while in session; the hearing was set for January 4, 1933, and on that day after hearing evidence the court determined the matter in favor of the right of appellants to prosecute the appeal.

Appellee Nash-Texas Company moves to dismiss the appeal on the following grounds: (1) Because, as the action of the court allowing the appeal was had more than thirty days after the order overruling appellants' motion for a new trial, the appeal was not perfected; the contention being that, under the statute, when the affidavit is contested the appeal is perfected, not by filing the affidavit, but by the order of court allowing same.

We cannot assent to this contention. The affidavit was filed in time, hearing of the contest was set for January 4, 1933, and on that day was heard and the appeal allowed. The statute, article 2266 (as amended by the 42d Legislature 1931, p. 226, c. 134, § 1 [Vernon's Ann. Civ. St. art. 2266]), provides, "* * * It will be presumed, prima facie, that the affidavit of appellant speaks the truth and unless contested within ten (10) days after being filed the presumption shall be deemed conclusive. * * *" The filing of a proper affidavit in time, prima facie, perfects appeal, subject, however, to be defeated by a successful contest, which must be begun within ten days. We find nothing in the statute warranting the contention that the order of court on the contest, determining the right to prosecute the appeal, must be entered within any particular time; the hearing is under the control of court, or the judge before whom the contest is pending, and when the right to appeal is determined favorably, the order relates back to the date the affidavit was filed.

It is also contended that the findings on the contest and the evidence heard thereon should have been certified to, or filed as a part of the record, and as this was not done the appeal should be dismissed.

The statute (article 2266) directs that, "* * * Any Officer of Court or party to the suit, interested, may contest the affidavit, whereupon the Court trying the case, if in session, shall hear the contest; but if in vacation, the same shall be heard by either the Judge of the Court or the County Judge of the County where the suit is pending and on such hearing evidence may be introduced, the right of the party to appeal shall be determined, the finding certified to, and filed as a part of the record of the case. * * *"

In the instant case, the contest was before the court trying the case while in session, and a full and complete minute of the proceedings is found in the record. It is only where the contest is before the judge, after adjournment, or the county judge of the county where the suit is pending, that the finding, determining the right of appeal, is required to be certified to and filed as a part of the record.

Appellee contends further that the trial court erred in allowing the appeal, because no attempt was made to secure sureties on the cost bond; in other words, an attack is made upon the fact finding of the trial court in determining the right to appeal.

The order entered upon the hearing contains the following: "* * * And all parties announced ready on the hearing of said contest; and, while the Honorable Claude M. McCallum, Judge who tried this case, was presiding in open court, there was presented and heard evidence in support of said affidavit filed herein by plaintiffs, and evidence in support of the contest of said affidavit filed herein by Nash-Texas Company, and/or Automotive General Corporation * * *, and the court being of the opinion that the plaintiffs, Mrs. E. G. (Ann Elizabeth Walsh) Rankin and E. G. Rankin, singly and/or jointly, are unable to pay the costs of appeal, or any part thereof, or to give security therefor; now therefore, etc., * * *" determining the right of plaintiffs to appeal...