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Rule 430. Amendment: New Appeal Bond

TEXT

When there is a defect of substance or form in any appeal or writ of error bond, then on motion to dismiss the same for such defect, the appellate court may allow the same to be amended by filing in such appellate court a new bond, on such terms as the court may prescribe.

Source: Art. 1840, unchanged.

Oct. 29, 1940, eff. Sept. 1, 1941.

Repealed by order of Dec. 5, 1983, eff. April 1, 1984. New Rule 363a includes these provisions.

ADVISORY OPINIONS

(No. 119) Question: In a case tried in the justice court, the losing party filed an appeal bond, approved by the justice of the peace, which was regular in manner and form and conditioned as required by law. It recited, however, that the appeal had been taken to the county court. The civil jurisdiction of the county court had been abolished and the appeal lay to the district court, to which the transcript was sent by the justice of the peace and there filed in due time. Appellee filed a motion to dismiss the appeal on the ground that the district court had no jurisdiction because it appeared from the recitals in the appeal bond that the appeal had been taken to the county court. Appellant, invoking Rule 571, moved the court to allow him five days within which to prepare and file an amended appeal bond to correct the error in the original bond. Should the appeal be dismissed or should the appellant be allowed five days within which to file an amended bond?

Answer: We are of the opinion that appellant should be allowed five days within which to file an amended bond. Under Rule 571 the appeal was perfected by filing the bond with the justice of the peace. The transcript an appeal was lodged in due time in the court which had jurisdiction of the appeal. All parties to the suit were aware of this fact. They were required by the rule to make their appearance at the next term of the court "without further notice." The appellee did in fact make his appearance in due time in the court which actually had jurisdiction of the appeal. He was, therefore, not surprised nor had he sustained any injury by reason of the defect and irregularity in the bond which was manifestly due to a clerical error and it probably resulted from the use of a printed form.

The rules of civil procedure, in their general scope, manifest the clear intent of the Supreme Court that appeals shall not be dismissed for clerical errors or for defects in mere form or substance when they can be cured by amendment, particularly where no injury results to the adverse party. Rule 481 relating to the Supreme Court provides that the application, or brief of the argument in support thereof, or reply thereto may be amended at any time when justice requires and specifically provides that the record and the appeal bond may be amended in the Supreme Court precisely as the same could be done in the Court of Civil Appeals under Rules 428, 429, 430 and 431. These rules established a new and wholesome procedure. They were adapted to prevent injustice and the denial of the substantive rights of parties which had often theretofore resulted from undue subservience to mere legal form.

We are also of the opinion that the matter is not jurisdictional. It has been held that an informal or defective bond not objected to may confer jurisdiction. Tynberg v. Cohen, 67 Tex. 220, 2 S.W. 734 (1887); Southern Pac. Co. v. Staley, 76 Tex. 418, 13 S.W. 480 (1890); Ricker v. Collins, 81 Tex. 662, 17 S.W. 378 (1891). Irregularities in a bond are waived by an appearance and amendment of pleadings and delay in making a motion to dismiss and such defects may be waived by continuance by consent. Cason v. Laney, 82 Tex. 317, 18 S.W. 667 (1891); Casan v. Westfall, 83 Tex. 26, 18 S.W. 668 (1892); Futch v. Palmer, 11 Tex.Civ.App. 191, 32 S.W. 566 (1895). There is no sound reason why, in the circumstances stated, the appellant should not be allowed time within which to file an amended bond and we think Rule 571 requires that it be done.

7 Tex. B.J. 80 (1944) reprinted in 8 Tex. B.J. 44 (1945).