Bush v. Atwood

Court of Appeals of Texas

Bush v. Atwood

133 S.W. 924, 1911 Tex. App. LEXIS 1327

CourtCourt of Appeals of Texas

DecidedJanuary 21, 1911

StatusPublished

Cited by3 cases

This text of 133 S.W. 924 (Bush v. Atwood) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bush v. Atwood, 133 S.W. 924, 1911 Tex. App. LEXIS 1327 (Tex. Ct. App. 1911).

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Opinion

TALBOT, J.

This is an appeal from a judgment of the district court of Dallas county dissolving a temporary injunction thereto[925]*925fore granted in the above-styled cause, and •dismissing said cause. No appeal bond appears to have been filed, but the appellant seeks to prosecute the appeal under that provision of our statute, -which declares that, where the appellant or plaintiff in error is' unable to pay the costs of appeal or give se•curity therefor, he shall nevertheless be entitled to prosecute his appeal, provided he makes strict proof by affidavit of his inability to pay the costs or any part thereof before the county judge of the county where •the appellant or plaintiff in error resides, or before the court trying the case. The affidavit filed by the appellant under this statute, however, does not describe or otherwise identify the judgment appealed from, and is not sufficient to confer jurisdiction upon this ■court. Vestal v. Reese et al., 28 S. W. 54; Dixon et al. v. Southern Bldg. & Loan Ass’n, 28 S. W. 58; Demonet v. Jones, 42 S. W. 1033. While the statute allows defective appeal or writ of error bonds to be amended, there is no authority in the Court of Civil Appeals to permit such an affidavit to be amended. Roberts v. Railway Co., 35 S. W. 66; Demonet v. Jones, 42 S. W. 1033. It follows that the appeal must be dismissed, •and it is accordingly so ordered.

Appeal dismissed.

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TALBOT, J.

This is an appeal from a judgment of the district court of Dallas county dissolving a temporary injunction thereto[925]*925fore granted in the above-styled cause, and •dismissing said cause. No appeal bond appears to have been filed, but the appellant seeks to prosecute the appeal under that provision of our statute, -which declares that, where the appellant or plaintiff in error is' unable to pay the costs of appeal or give se•curity therefor, he shall nevertheless be entitled to prosecute his appeal, provided he makes strict proof by affidavit of his inability to pay the costs or any part thereof before the county judge of the county where •the appellant or plaintiff in error resides, or before the court trying the case. The affidavit filed by the appellant under this statute, however, does not describe or otherwise identify the judgment appealed from, and is not sufficient to confer jurisdiction upon this ■court. Vestal v. Reese et al., 28 S. W. 54; Dixon et al. v. Southern Bldg. & Loan Ass’n, 28 S. W. 58; Demonet v. Jones, 42 S. W. 1033. While the statute allows defective appeal or writ of error bonds to be amended, there is no authority in the Court of Civil Appeals to permit such an affidavit to be amended. Roberts v. Railway Co., 35 S. W. 66; Demonet v. Jones, 42 S. W. 1033. It follows that the appeal must be dismissed, •and it is accordingly so ordered.

Appeal dismissed.

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Bluebook (online)

133 S.W. 924, 1911 Tex. App. LEXIS 1327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bush-v-atwood-texapp-1911.

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