McCorvey v. Huddleston

LEVY, J. (after stating the facts as above). The court, on motion of the defendant in error, “dismissed,” as it appears, “the appeal” of this cause from the justice court for failure, due to lack of diligence, to comply with the requirement of the law that a transcript, or true copy of all docket entries in the cause in the justice court, be filed in the county court “on or before the first day of the second term of the court” after an appeal has been granted from the justice to the county court. The motion was made and granted during the third term of the county court after the appeal from the justice court, and at that time a “transcript,” in accordance with the terms of the statute providing for a transcript, had not been transmitted from the justice court and filed in the county court, or any steps taken to have it done. And at the time the motion was made and the court granted the same, the plaintiff in error, who was the appellant in the cause, made no 'offer or attempt to file the transcript. The offer to submit and file the transcript was made subsequently, on a motion “to reinstate the cause.” The court refused the motion, because, as stated, the motion “was filed more than two days after the order was made and no cause shown for such delay,” and “no just cause is shown for setting aside said order and reinstating said cause.” The point for review on this appeal is that of whether or not the court erred in the premises. The statute provides that the appeal from a justice to the county court “shall be held to be thereby perfected” when the party appealing shall, within ten days from the date of the judgment, file with the justice a bond, or the proper affidavit of inability to give bond. Articles 2393, 2394, R. S. And the filing of the bond in the justice court, approved by the justice, vests jurisdiction of the suit instituted in the county court, and the power, as such, of the county court over the suit is not rendered ineffective or taken away by the mere fact alone that a transcript from the justice’s docket has not been filed within the special time required by law. Clark & Donaldson v. Harris & Locke, 61 Tex. Civ. App. 56, 129 S. W. 202; Tevebaugh v. Smith Land Co. (Tex. Civ. App.) 146 S. W. 647; Imperial Motor Sales Co. v. Brannon (Tex. Civ. App.) 217 S. W. 761; and other cases. An appeal upon the conditions of the statute is a matter of right. But since the appeal to the county court operates as the commencement of a new suit to annul and set aside the judgment of the justice court, and not a continuation of the suit below to which it relates (Gibbs v. Belcher, 30 Tex. 79), the statute has provided a mode or method for bringing up the whole record or proceeding involving the judgment in the justice court for purposes of review and trial in the county court. The statute requires the following record or proceeding to be transmitted to and filed in the county court, in order to the proper exercise of the right of the county court to try the cause de novo, viz.: (1) A true and correct copy of all the entries made on the justice’s docket in the cause, officially certified by the jtis-tice; (2) a certified copy of the bill of costs taken from the justice’s fee book; (3) all the original papers. Article 2398, R. S. Such transcript and papers shall, if practicable, be transmitted and filed in the county court on or before the first day of the next term of such court after the appeal is granted from the justice court, or, if there be not time to do so, then on or before the first day of the second term of such court. Article 2397, R. S. These provisions are made in the nature of a restriction upon the exercise by the court of a right to try the cause, unless and until all the records and proceedings are officially before such court. Until the transcript and papers are filed in the county court, the cause as such is not actually transmitted for orderly and legal trial from the one tribunal to the other. There is an absence of legal proof of any judgment, the character of the judgment, and of the parties to the suit, and of the amount in controversy, or nature of relief sought. All these things are essential to the jurisdiction of the county court, and for its information, intended to be supplied to the court by the transcript. Therefore, under proper circumstances appearing showing lack of diligence on the part of the party appealing to have the transcript and proceedings filed in the county court, the appeal, although perfected by filing the bond, may be dismissed, as for want of prosecution of the appeal. Cariker v. Dill (Tex. Civ. App.) 140 S. W. 843; Railway Co. v. Aycock (Tex. Civ. App.) 201 S. W. 664; Piquero & Smith v. Carlin (Tex. Civ. App.) 208 S. W. 956; Clark v. Maund (Tex. Civ. App.) 216 S. W. 257. As seen by the cases, the rule is clear that, although the county court acquires jurisdiction of the appeal by filing the appeal bond in the justice court, the appeal may thereafter be dismissed for want of prosecution, where there is lack of proper diligence *569 on the part of the party appealing to have the proper transcript and papers filed in the county court in time required by law. As to whether proper diligence is shown in any case must depend upon the facts of each case. In the present case there is involved a finding by the -trial court that “good cause” for not filing the transcript is not shown; and when the motion to dismiss was made the plaintiff in error did not, as appears, at that time offer to file a transcript. The offer to file a transcript was not made until afterwards; and the court in effect concluded that a sufficient reason for the delay was not shown. This court is not warranted, in the record, in setting aside the judgment, and it is affirmed.