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43 Tex. 653

Green v. Martin

Texas Supreme Court

Decided July 1, 1875

Texas Supreme Court · decided 1875-07-01

<p>Appeal.—An affidavit by one desiring to appeal from a judgment of the District Court that affiant “is unable to give the appeal bond necessary in this case to affect his appeal taken on the court overruling his motion for new trial,” is not a compliance with the statute, which entitles one to appeal who will make oath that “he is unable to give bond and security for costs as may be required by law.” (2 Paschal’s Dig., art. 6180.)</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1875-07-01

How this case has been cited

Cited by 8 later decisions — most recently June 1940

8 state decisions

2018751880189019001910192019301940decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Roberts, Chief Justice.

¶1The motion is filed 1st November, 1875, to file a transcript which should have been filed on the first assignment, the 4th day of October, 1875. Appellee’s attorney waives service of notice of this motion as attorney for J. D. Martin.

¶2TJpon examining the record to ascertain whether or not the record would be properly filed in this court, if leave was granted, it is found that after giving notice of appeal the defendant beloxv filed in that court an affidavit as follows: “And now comes defendant, William Green, and says that he is unable to give the appeal bond necessary in this case to affect his appeal, taken on the court overruling his motion for a new trial.” This oath was intended to be a compliance with the statute, which prescribes that he shall make affidavit that “ he is unable to give bond and security for costs, as may be required by law.” (2 Paschal’s Dig,, art. 6180.) This requires, as we have previously decided, that he shall swear that he is not able to give bond and security for costs. By giving bond for cost he can bring the case to this court by writ of error, which has ever been regarded simply as a mode of appeal. It is not believed to have been the object of the law to give *654the party making it the right to have the judgment super-ceded in any degree, as would be the case if it is held to be tantamount to a bond for cost and damages on appeal. He might well be able to give a bond for the costs only, by which he could obtain a writ of error, (an appeal in effect,) when he could not give a bond for cost and damages, or for the debt, damages, and cost. Considering, therefore, the wording of the law, in reference to the subject-matter, we think the affidavit to secure the appeal should state that the party is not able to give a bond for security for the costs, and should not be so shaped, as it is in this case, to embrace his inability to give a bond for the cost and damages, or for the debt, damages, and cost.

¶3The affidavit not being sufficient, the leave to file the transcript is refused, without considering the question of diligence in the effort to file it in this court in proper time.

¶4Refused.

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