Schackle v. Fogle

162 S.W. 911, 1913 Tex. App. LEXIS 476

• Court: Court of Appeals of Texas
• Decided: November 19, 1913
• Status: Published

Opinion

KEY, C. J.

Appellees have filed in this court a motion to affirm on certificate. The motion is accompanied by a certificate oí the clerk containing a copy of the judgment and order of the court overruling the motion for new trial, and reciting the fact that notice of appeal was given, but no copy of the appeal bond has been sent up. However, the clerk has certified that an appeal bond has been filed and approved.

Nine years ago, in Supreme Council v. Anderson, 36 Tex. Civ. App. 615, S3 S. W. 207, following decisions of the Supreme Court in House v. Williams, 40 Tex. 351, and H. & T. C. Ry. Co. v. Greenwood, Id. 362, this court held that, in order to confer jurisdiction and authorize an affirmance upon certificate, a certified copy of the bond, in cases where an appeal bond was required, should be sent up with the motion to affirm; and since that time the ruling there made has been adhered to by this court. . If the clerk’s statement that an appeal bond has been given is sufficient, then the same effect ought to be given to his certificate, stating that a judgment had been rendered; but the contrary was held in the cases cited.

In addition to the question of the lack of jurisdiction, we think it a sound rule of practice to require a copy of the appeal bond to be sent up, in order that judgment for costs in this court may be rendered against the sureties on such bond. It is nothing but fair to require this to be done as a protection to the officers of this court. Therefore, because no copy of the appeal bond has been brought up, the motion to affirm on certificate is overruled.

Motion overruled.