Court of Civil Appeals of TexasMay 7, 1903
32 Tex. Civ. App. 408 (Tex. Civ. App. 1903)

Decided May 7, 1903.

Appeal to County Court — Bond — Filing — Approval.

Where on appeal from a justice court there was an appeal bond among the papers filed in the county court, and one of the items in the bill of costs of the justice court as shown in the transcript was for taking an appeal bond, but the bond did not have indorsed on it the file mark of the justice or his approval thereof, it sufficiently appeared that the bond was filed and approved by him.

Appeal from the County Court of Panola. Tried below before Hon. Thos. E. Boren.

W.R. Anderson, for appellants.

A.G. Brooke, for appellee.

This appeal is from a judgment of the County Court of Panola County dismissing an appeal from a justice court. The judgment appealed from was rendered in the justice court March 13, 1902. The transcript from the justice's docket was made out and certified by the justice and together with the papers of the case was filed in County Court April 1, 1902. An appeal bond was among the papers of the case filed in the County Court, but it did not have indorsed on it the file mark of the justice of the peace or his approval thereof. The certificate to the transcript is dated March 18, 1902, and there is indorsed thereon "issued March 20, 1902," signed by the justice. The bill of costs copied in the transcript contains an item, "Taking appeal bond 25 cents." An oral motion was made by the plaintiff in the County Court to dismiss the appeal because it had not been perfected by the filing and approval of a bond as required by law. The plaintiffs offered parol evidence to show that the bond had been actually delivered to the justice of the peace on March 20, 1902. The court below refused to hear the evidence because it was not tendered until after the argument had been heard and he had announced his conclusion. It would have been proper for the court to have heard the evidence, but the fact appearing from the transcript that the justice had taken the bond before be issued the transcript filed with the papers in the County Court, that was sufficient evidence of the filing of the bond. The bond is dated March 20, 1902, while the transcript is certified March 18, 1902, but this certification is corrected by the indorsement "Issued March 20, 1902," which shows the actual date the bond was acted on and that it was within the ten days required. The action of the justice in making out and certifying the transcript and transmitting it with the papers of the case to the County Court is evidence of the approval of the bond. It was not necessary that the justice should write thereon the date of the filing of the bond with him and his name under such indorsement to make it a filed paper. The paper was filed in contemplation of law when it was delivered to the officer for that purpose, and it was approved when he acted upon it.

The judgment of the court below will be reversed and the cause remanded to the court below, with instructions to overrule the motion to dismiss.

Reversed and remanded.