P. S. Jones & Co. v. Collins

8 S.W. 681, 70 Tex. 752, 1888 Tex. LEXIS 1080

Opinion

Walker, Associate Justice.

Judgment was rendered in a justice court May 1, 1885. Motion for new trial was filed May 2. It was not acted on within ten days, and on May 15, at request of the defendant, it was overruled and he gave notice of appeal. On the twenty-first of May he filed an appeal bond. The appeal was dismissed, and from the judgment an appeal to this court was prosecuted.

The Court of Appeals in Grant & Kenner v. Fowzer Bros., volume 3, part 1, Willson’s Appealed Cases, has held: “If a motion for a new trial has been filed within five days after the rendition of the judgment, but no action has been had thereon within ten days after the rendition of the judgment, such motion would be considered as overruled on the tenth day after the date of the judgment, and a party would in such case have ten days thereafter within which to file his appeal bond.”

The rule of decision upon this subject ought to be the same in all the courts. The subject being peculiarly within the jurisdiction of the Court of Appeals, we regard the decisions of that court as authoritative, and we are unwilling to revise them.

Following the rule cited, the appeal bond was filed in time, and the dismissal of the appeal was error for which the judgment below is reversed.

Reversed and remanded.