Ivey v. State

Court of Criminal Appeals of Texas

Ivey v. State

87 S.W. 343, 48 Tex. Crim. 254, 1905 Tex. Crim. App. LEXIS 167

CourtCourt of Criminal Appeals of Texas

DecidedMay 10, 1905

DocketNo. 2843.

StatusPublished

This text of 87 S.W. 343 (Ivey v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ivey v. State, 87 S.W. 343, 48 Tex. Crim. 254, 1905 Tex. Crim. App. LEXIS 167 (Tex. 1905).

Pincite

Opinion

BROOKS, Judge.

Appellant attempted to appeal from the judgment of the justice court to the county court, without first having filed a motion for new trial in the justice court. The bond was executed and filed within ten days after the rendition of the judgment. In the county court the State moved to dismiss the appeal because, of the failure of the appellant to file motion for new trial in the justice court, which motion was sustained by the county court. From this judgment of the county court appellant appeals. Article 890, Code Criminal Procedure, provides: “Such appeal bond shall in all cases be given within ten days after the judgment of the court refusing a new trial has been rendered, and not afterwards.” We do not think it is necessary to file a motion for new trial in the justice court before appealing the case; but all that is necessary is for appellant to give notice of appeal, and file the proper bond within the ten days as required by statute. We do not think the statute quoted was intended to make a motion for new trial a condition precedent to appeal. It follows, therefore, that the *255 trial court erred in sustaining the motion made in the county court to dismiss the appeal because a motion for new trial had not been filed in the justice court. The judgment is accordingly reversed and the cause remanded.

Reversed and' remanded.

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BROOKS, Judge.

Appellant attempted to appeal from the judgment of the justice court to the county court, without first having filed a motion for new trial in the justice court. The bond was executed and filed within ten days after the rendition of the judgment. In the county court the State moved to dismiss the appeal because, of the failure of the appellant to file motion for new trial in the justice court, which motion was sustained by the county court. From this judgment of the county court appellant appeals. Article 890, Code Criminal Procedure, provides: “Such appeal bond shall in all cases be given within ten days after the judgment of the court refusing a new trial has been rendered, and not afterwards.” We do not think it is necessary to file a motion for new trial in the justice court before appealing the case; but all that is necessary is for appellant to give notice of appeal, and file the proper bond within the ten days as required by statute. We do not think the statute quoted was intended to make a motion for new trial a condition precedent to appeal. It follows, therefore, that the *255 trial court erred in sustaining the motion made in the county court to dismiss the appeal because a motion for new trial had not been filed in the justice court. The judgment is accordingly reversed and the cause remanded.

Reversed and' remanded.

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Bluebook (online)

87 S.W. 343, 48 Tex. Crim. 254, 1905 Tex. Crim. App. LEXIS 167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ivey-v-state-texcrimapp-1905.