Tompkins v. Pendleton

• Citation: 160 S.W. 290
• Parties: TOMPKINS et al. v. PENDLETON.
• Decision Date: 18 June 1913
• Court: Court of Appeals of Texas

160 S.W. 290

TOMPKINS et al. v. PENDLETON.

Court of Civil Appeals of Texas. Austin.

June 18, 1913.

On Motion for Rehearing, October 15, 1913.

On the Merits, October 22, 1913.

Appeal from District Court, Waller County; Wells Thompson, Judge.

Probate proceedings by Walton Pendleton against Henry Tompkins and others, contestants. From a judgment for proponent, contestants appeal. Reversed and remanded on rehearing.

K. E. Hannay, and R. E. Hannay, Jr., both of Hempstead, for the motion. W. J. Poole, of Madisonville, and A. G. Lipscomb, of Hempstead, opposed.

On Motion to Dismiss Appeal.

RICE, J.

This is an appeal from a judgment of the district court of said county probating the will of Lou Wyatt, deceased, and appointing appellee executor of said estate, and directing that letters testamentary should be issued to him. We gather from the brief and record that this case originated in the probate court of said county, wherein appellee propounded said will for probate, which was contested by appellants on the ground that said deceased was of unsound mind, and that the same was induced by undue influence, etc.

There is no appeal bond nor certified transcript, however, of the papers and proceedings relating to the judgment appealed from, as required by article 2204, Sayles' Rev. Civ. Stat. 1888, and which failure is made the basis by appellee of a motion to dismiss said appeal. The district court had no original, but only appellate, jurisdiction of this case; and article 2200, Sayles' Rev. Civ. Stat., provides that any person who may consider himself aggrieved by any decision, order, decree, or judgment of the county court shall have the right to appeal therefrom to the district court of the county upon complying with the provisions of chapter 31, which requires, among other things, that such appellant shall, within 15 days after the decision, judgment, or decree shall have been rendered, file with the county clerk a bond conditioned as required by law, and that upon the filing of such bond such clerk shall make a certified copy of the proceedings and papers relating to such decision or decree, together with such decision or decree, and transmit the same to the clerk of the district court, together with the appeal bond, or affidavit in lieu of such bond, if any has been given, on or before the first day of the next term of such court. Without the filing of such bond or affidavit in lieu thereof, the district court can acquire no jurisdiction, and the appeal should be dismissed. See Smithwick v. Kelly, 79 Tex. 564, 15 S. W. 486. And it is the settled practice in this state that where the court a quo had no jurisdiction of the case, the appellate court can acquire none. See Able v. Bloomfield, 6 Tex. 263; Horan v. Wahrenberger, 9 Tex. 317, 58 Am. Dec. 145; Davis v. Stewart, 4 Tex. 223. The practice in this respect is very much similar to that prescribed in appeal from the justice to the county court (see articles 1670 and 1673, Sayles' Rev. Civ. Stat. 1897); and it has been frequently held in such cases that where no appeal bond and transcript were filed, as required by said last-named articles, that the county court acquired no jurisdiction, and such appeals should be dismissed (see M., K. & T. Ry. Co. v. Bland, 55 Tex. Civ. App. 382, 119 S. W. 911; Bonner & Legg v. Tyndall, 46 Tex. Civ. App. 176, 101 S. W. 839; Needham v. Austin Electric Ry. Co., 127 S. W. 904). But appellants in this case resist the motion to dismiss for the reason, as they allege, that they complied with the statute in this respect, showing that they filed their appeal bond conditioned as required by law with the county clerk, who approved the same, within two days after the judgment was rendered in the county court, and that said bond was thereafter, in due time, together with the transcript of the proceedings, filed in the district court of said county, attaching to said reply certified copy of said bond, omitting, however, a transcript of such proceedings, but offered no explanation or excuse showing why such bond and proceeding were omitted and asking that in the event this court is not satisfied, it issue its writ of certiorari to the district clerk of said county to complete said transcript, which reply was duly verified. This reply, however, was not filed in this court until June 6, 1913, and the transcript of the record was filed in the Court of Civil Appeals for the Galveston District on July 8, 1912, and in this court on May 5, 1913, for which reason we must disregard this reply and the copy of the bond thereto attached, and refuse to issue the writ of certiorari, because such motion must be filed within 30 days after the transcript is filed in the Court of Civil Appeals. See rules 8 and 11 (142 S. W. xi) for the government of the courts of civil appeals.

But, even if we are mistaken in this, still this court has no jurisdiction to entertain said appeal, because it appears from appellants' brief that they introduced no proof on the trial in the county court when the will was offered for probate, and by such failure appellants must be held to have abandoned their suit; and, having abandoned their cause of action, they have no right of appeal. See Sorrell v. Stone, 127 S. W. 300, in which a writ of error was denied by the Supreme Court.

For the reasons indicated, we think the motion to dismiss the appeal should be sustained, and it is so ordered.

Appeal dismissed.

On Motion for Rehearing.

A. G. Lipscomb, of Hempstead, and W. J. Poole, of Madisonville, for appellants.

RICE, J.

While appellants' brief stated, as held by us in original opinion, that no proof was offered by them on trial in the county court, yet it clearly appears from the record that this statement was incorrect and was inadvertently made; such proof having in fact been introduced.

It is also true that while rules 8 and 11 require all motions for certiorari and to amend the transcript, occasioned by irregularities in the manner of bringing a case into court, to be filed within 30 days after the case is filed in this court, still these rules are not to be so arbitrarily construed as to defeat the ends of justice in any case. The record shows that an appeal bond was in fact filed from the county court to the district court, together with the transcript, in due time; and the failure to incorporate these documents in the transcript to this court is not shown to be attributable to the negligence of appellants' counsel. On the contrary, it seems that he prepared the list of papers to be copied by the clerk in the transcript, and this list embraced the bond and transcript on appeal from the county to the district court, and the failure on the part of the clerk to conform to this request was not discovered by said counsel until the motion to dismiss the appeal was filed. This motion should itself have been made, under rule 9 (142 S. W. xi), within 30 days from the time the record was filed in the appellate court, but was not done until about one year had elapsed. Therefore it was impossible...