Davis v. Bowen

KEY, C. J. Appellee has filed a motion to dismiss this appeal because the transcript does not contain any caption, as required by rule 91 for the district and county courts (142 S. W. xxiii), and because it does not appear from the transcript before whom the cause was tried, nor when the term of the district court of Brown county adjourned at which the' cause was tried, and, as it affirmatively appears from the transcript that the judgment was rendered more than 30 days prior to the date of filing the appeal bond, and the failure of the transcript to show when the court adjourned, therefore it does not affirmatively appear that the appeal bond was filed in time to confer jurisdiction upon this court. The motion correctly states the facts concerning the transcript, and we sustain the second ground thereof and dismiss the appeal. We do not hold that the failure of the transcript to contain a caption, as required by rule 91, would justify a dismissal of the appeal, where all the facts necessary, showing that the appellate court has jurisdiction, are made to appear elsewhere in the transcript. But, in the instant case, it nowhere appears when the court adjourned, and, as the judgment was rendered on February 23, 1922, and the appeal bond was not filed until March 31, 1922, it does not affirmatively appear that this court has jurisdiction. In certain instances an appeal bond may be filed within a given number of days after the adjournment of court, while in other instances it is required to be filed within 20 days after the judgment is rendered. In this case the bond was filed more than 20 days after the judgment was rendered, and, as the record does not show when the court adjourned, it does not affirmatively appear that the bond was filed within the time prescribed by law. If the transcript contained the caption required by rule 91, it would show when the court adjourned, but it does not contain any caption, although the index may indicate that a caption was prepared, but omitted when the transcript was finally closed up and delivered to appellant’s counsel. But,' as appellant has made no reply to the motion [64] and lias not asked for time in which to have the transcript corrected, we deem it onr duty to sustain the motion and dismiss the appeal. Appeal dismissed.