Curtis v. J. Bernstein & Co.

2 Wilson 592

• Court: Court of Appeals of Texas
• Decided: May 9, 1885
• Docket: No. 3336
• Status: Published

Opinion

Opinion by

White, P. J.

§ 671. Appeal from justice’s court; withdrawal of, in justice’s court; does not affect trial in county court, when; case stated. On June 30, 1884, appellees recovered a judgment against appellant in a justice’s court for $181.50. Appellant moved for a new trial, which was overruled, and he gave notice of appeal to the county court and filed an appeal bond. On October 11, 1884, he placed in the papers in the cause a writing, abandoning his appeal and agreeing that execution upon the judgment might issue instanter. It does not appear that this paper was ever filed with or called to the attention of the justice, nor does it appear that appellees had any notice of the same. At the instance of appellees, the justice sent up the transcript and papers in the case to the county court, where, at the first term of said court after said appeal, judgment was rendered against appellant, he not having appeared in said court. Appellant moved to set aside said judgment at the same term it was rendered, and for a new trial, upon the grounds: 1. That the county court did not have jurisdiction of the appeal, he having abandoned said appeal in the justice’s court; and 2. That judgment was improperly ren-, dered against him at the first term, he not having been notified of said appeal. This motion was overruled. Held: Neither ground of the motion is maintainable. If appellant had called attention to his written abandonment of appeal, and procured the justice to make an entry on his docket to the effect that said appeal had been withdrawn, such an entry, if made during the term at which the judgment was rendered, would have been authorized and valid, because, during the term, a justice, as any other court, has authority to change his own judgments. [Blum v. Wettermark, 58 Tex. 125.]

May 9, 1885.

§ 672. Same; is perfected, when; jurisdiction of court' a quo ceases, when. In civil cases, when the appeal bond is filed, the appeal becomes perfected at the adjournment of the term, and the court a quo has no further jurisdiction over the case; the jurisdiction then attaching in the court appealed to, and the court appealed from is then without authority to take any further action or make any further order in the case.

§ 673. Notice in county court of appeal from justice’s court; appellant not entitled to. The statute providing for notice in the county court, of an appeal from justice’s court, is applicable alone to the appellee or party against whom the appeal is taken. It has no reference to the appellant, the party prosecuting the appeal, who is presumed to know whether or not, and when, and to what court he has appealed. He is the party who must give, not receive, notice of the appeal. [R. S. art. 1638; Acts 18th Leg. p. 91.]

Affirmed.