Labansat v. Cameron County

143 S.W.2d 94

• Court: Court of Appeals of Texas
• Decided: August 28, 1940
• Docket: Motion No. 14032
• Status: Published

Opinion

SMITH, Chief Justice.

Cameron County and others, as defendants, recovered judgment against Ana Lab-ansat and others, as plaintiffs, in the district court of the 103rd district of Cameron County. The judgment was rendered at a term of court which could not by law, and did not in fact, continue in session more than eight weeks. The plaintiffs filed a motion for new trial which was overruled on the day the term ended, to-wit: June 8, 1940, but plaintiffs did not file their appeal bond until 21 days thereafter, on to-.wit: June 29, 1940.

Thereafter, on August 6, plaintiffs tendered the record in the case for filing in this court, but the clerk refused to file the same, for the stated reason that it appeared therefrom that the appeal bond was filed one day too late. Plaintiffs thereupon, on August 10, filed their motion for leave to file the record and prosecute an appeal in this court. Plaintiffs concede that the appeal bond was filed one day after the expiration of the time prescribed by statutes for such filing. Art. 2253, R.S.1925, as amended, Act 1927,. 40th Legislature, p. 21, Ch. 15, § 1, Vernon’s Ann.Civ.St. art. 2253.

Although it may be conceded that mov-ants set up reasons for the delayed filing of the appeal bond which would ordinarily justify exercise of discretion in aid of the right of appeal, yet the motion must nevertheless be denifed, because no discretion is lodged in this court to 'excuse a delay, even though of only one day, in filing appeal bonds below. For “The decisions are numerous and uniform tp the effect that if an appeal bond is not filed within the time prescribed the Court of Civil Appeals acquires no jurisdiction, and is without power to acquire it.” 3 Tex.Jur. § 227; El Paso & N. E. R. Co. v. Whatley, 99 Tex. 128, 87 S.W. 819.

Motion denied.