Loftin v. Nalley , 28 Tex. 127 ( 1866 )

Smith, J.

—The appellees present the certificate of the clerk of the District .Court of Falls county, and suggest that they obtained judgment against appellant on the 31st March, 1860, and he appealed to this court, and having failed to file a transcript of the record, as the law prescribes, they move the court to affirm the judgment, without reference to the merits.

Appeals are perfected so as to give this court jurisdiction—first, by notice of appeal entered of record; and, secondly, by giving the appeal bond within twenty days after the adjournment of the court, in cases where bond is not dispensed with, and without these two things being done the jurisdiction of this court does not attach. (Burr v. Lewis, 6 Tex., 76.) [Paschal’s Dig., Art. 1491, Note 583.]

When the appeal is perfected, it is the duty of the appellant to file a transcript of the record in this court, as prescribed in Art. 1923, O. & W. Dig. [Paschal’s Dig., Art. 1587, Note 614.] It is not pretended that the transcript has been filed by the appellant.

Art. 1925, O. & W. Dig., provides, that in case the appellant fails to file the transcript of the record as directed by law, then the appellee shall have the right to file, with the clerk of this court, a certificate from the clerk of the district court in which the judgment may have been rendered, attested by the seal of his court, stating the “ time when the appeal was perfected ,” and it shall be the duty of this court to affirm the judgment of the court below. (Paschal’s Dig., Art. 1589, Note 616.)

It is apparent that these proceedings are summary and ex parte, and the party claiming the benefit of them must bring himself within the strict meaning of the law.

It is important, first, to determine whether the appeal has been “perfected,” by notice entered of record and giving the bond. The clerk’s certificate consists of a copy of the judgment and appeal bond, with statement appended, that they are true copies of the judgment rendered March 31, 1860, and appeal bond filed and approved 20th April, 1860. There is nothing in the copy or certificate to show that the appeal was taken in term time or notice entered of record, nor does the clerk state “at what time the appeal was perfected,” or that it was ever “perfected,” unless it can be inferred from the statement that the appeal bond was filed and approved April 20, 1860. This inference we cannot draw from that statement. To make his statement evidence at all, it must be in accordance with the statute. If he had stated the “time when the appeal was perfected,” as directed in Art. 1925, O. & W. Dig., it might then become a question whether that would be sufficient evidence to this court that all had been done necessary to give this court jurisdiction of the matter: that is, that notice of appeal had been entered of record, and an appeal bond had been filed and approved properly. In this case no such presumption can be indulged, there being no such statement made by the clerk, or other evidence that notice of appeal was entered of record.

This court has often decided, on motions to affirm on certificates, in cases of writs of error, that it must be made to appear to the court that the notice of the writ of error had been served on the defendant in error; and we are of opinion it should be made to appear in appeal cases that the notice of appeal had been given as the law directs before judgment can he affirmed on certificate, without reference to the merits; and this certificate not being within the rule stated, the motion to affirm must be overruled, and ■certificate dismissed at appellees’ costs.

Motion overruled.