Rose Mfg. Co. v. Shahady

• Decision Date: 16 January 1924
• Docket Number: (No. 7076.)
• Parties: ROSE MFG. CO. v. SHAHADY.
• Court: Texas Court of Appeals

258 S.W. 207

ROSE MFG. CO. v. SHAHADY.

(No. 7076.)

Court of Civil Appeals of Texas. San Antonio.

January 16, 1924.

Appeal from District Court, Webb County; John L. Dannelley, Judge.

Action between the Rose Manufacturing Company and J. Shahady. From an adverse judgment, the former appeals. Appeal dismissed.

H. G. Dickinson, of Laredo, for appellant.

Hicks, Hicks, Dickson & Bobbitt, of San Antonio, for appellee.

FLY, C. J.

This case was tried at a term of the district court of the Forty-Ninth district, which began on May 7, 1923, being the thirteenth Monday after the first Monday in February, and adjourned on June 30, 1923. Under the law it could have continued in session for 8 weeks. Under the law, if the term of the court may continue more than 8 weeks, the appeal bond or affidavit in lieu thereof shall be filed within 20 days after notice of appeal is given, if the party taking the appeal resides in the county, and within 30 days if he resides out of the county. Vernon's Sayles' Civ. Stats. art. 2084; Nash v. Noble, 52 Tex. Civ. App. 425, 114 S. W. 848; Simpson v. Baker, 57 Tex. Civ. App. 460, 122 S. W. 959; Brown v. Allen (Tex. Civ. App.) 135 S. W. 601; James v. Golson (Tex. Civ. App). 165 S. W. 896; Hartsough v. Harty (Tex. Civ. App.) 183 S. W. 1; Yount v. Fagin (Tex. Civ. App.) 225 S. W. 591.

The effect of a failure to file an appeal bond, as required by the statute, is to defeat the jurisdiction of the appellate court, and the cause must necessarily be dismissed. This court could not acquire jurisdiction of a cause because the appellee did not call its attention to the failure to file the appeal bond in time. It is a matter that goes to the jurisdiction, and, whenever the court ascertains the lack of jurisdiction, the cause will be dismissed. Farmer v. McKinley (Tex. Civ. App.) 208 S. W. 408; Fryer v. Headlee (Tex. Civ. App.) 218 S. W. 654; White v. Day (Tex. Civ. App.) 230 S. W. 843.

The appeal will be dismissed in the absence of the statutory bond even at a subsequent term. Nunez v. McElroy (Tex. Civ. App.) 184 S. W. 531; Edens v. Cleaves (Tex. Civ. App.) 206 S. W. 722.

The district court in Webb county, which tried this cause, could not by law continue more than eight weeks, and therefore appellant, no matter whether it resided in Webb county or not, in order to perfect its appeal was required to file its appeal bond within 20 days after expiration of the term. The term expired on June 30, and appellant filed its appeal bond on July...