McLane v. Russell

29 Tex. 127

• Court: Texas Supreme Court
• Decided: January 15, 1867
• Status: Published

Opinion

Coke, J.

In order to confer jurisdiction by appeal on this court, it is well settled, by repeated adjudications, to be necessary that notice of appeal be given and entered of record during the term, and that the appellant shall enter into a proper appeal bond, which must be approved and filed by the clerk within twenty days from the date of the adjournment of the term at which the judgment was rendered; and that, if a record is filed here which does not show affirmatively that these requirements have been complied with, the case is coram nonjudice, and will be stricken from the docket. (O. & W. Dig., Arts. 548, 549; Burr v. Lewis, 6 Tex., 81; Lyell v. Guadalupe Co., (late Austin term,) [28 Tex., 57.]

We have held that, where an appeal bond appears in the record indorsed with the proper file-mark of the clerk, we will presume his approval, although it does not expressly appear to have been approved; and that, when such a bond is properly approved by the clerk, we will presume its proper filing, although the indorsement of the filing is not on it. In each of these cases the official act of the clerk, which appears in the record, necessarily includes the existence and verity of the other, which does not appear, and shows conclusively that its non-appearance is attributable to a mere clerical oversight or omission.

But the appeal bond in this case is neither filed nor approved by the clerk, and appears in the record unaccompanied by any evidence or presumption of its verity or authenticity. Its embodiment in the record in this shape was unauthorized, and imparts to it no force or validity, and entitles it to no consideration. In contemplation of law the appeal in this case has never been perfected, and the case must be stricken from the docket.

Ordered accordingly.