Washington v. Haverty Furniture Co.

LEVY, J. [1] Upon the judgment in this case the appellant gave notice of appeal, and sought to perfect the appeal by filing with the clerk of the court an affidavit, made before the clerk after final judgment of the term of the court, of her inability to pay the'costs of appeal or give security therefor. It does not appear in the record that such affidavit was presented or acted upon by the court trying the case, or the county judge. The statute expressly requires the court trying the case, if in session, or the county judge of the county where the party resides, to hear evidence and determine the right of such party to have the appeal on affidavit of inability to pay costs in lieu of an appeal bond. Article 1401, Rev. St. 1895. And the making of such affidavit before the clerk and merely filing it with him is not such a compliance with the statute as to perfect the appeal and give this court jurisdiction to entertain the appeal. Graves v Horn, 89 Tex. 77, 33 S. W, 322; Hearne v. Prendergast, 61 Tex. 627; Bargna v. Bargna, 123 S. W. 1143. [2] Appellant asks a postponement of the submission of the cause until such reasonable time as she can prepare and file an amended or new affidavit. It was decided in Wood v. Bailway Co., 43 Tex. Civ. App. 590, 97 S. W. 323, that the statute allowing new appeal bonds to be filed related alone to bonds, and was not applicable to affidavit in lieu of bond; and it would not accomplish appellant anything to postpone the submission. The appeal is dismissed.