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Rule 749. May Appeal (1988)

TEXT

In appeals in forcible entry and detainer cases, no motion for new trial shall be filed.

Either party may appeal from a final judgment in such case, to the county court of the county in which the judgment is rendered by filing with the justice within five days after the judgment is signed, a bond to be approved by said justice, and payable to the adverse party, conditioned that he will prosecute his appeal with effect, or pay all costs and damages which may be adjudged against him.

The justice shall set the amount of the bond to include the items enumerated in Rule 752.

Within five days following the filing of such bond, the party appealing shall give notice as provided in Rule 21a of the filing of such bond to the adverse party. No judgment shall be taken by default against the adverse party in the court to which the cause has been appealed without first showing substantial compliance with this rule.

Amended by order of July 15, 1987, eff. Jan. 1, 1988. Comment. The purpose of this amendment is to give notice to the appellee that an appeal of the case from the justice court has been perfected in the county court.

ADVISORY OPINIONS

(No. 83) Question: In regard to Rules 749 and 752 relating to Forcible Entry and Detainer:

1. Do the rules require the plaintiff or landlord to give an appeal bond in order to appeal to the County Court?

2. Where the tenant is the appellee in the County Court, does Rule, 752 contemplate that such appellee could, under any circumstances, recover damages or expenses incurred in defending the appeal?

Answer: In our opinion both of said questions should be answered in the affirmative.

We call attention to the fact that these two rules are exact copies of the former Statutes, and therefore these rules effect no change in the former practice under the Statutes.

It had been held under the Statutes that the giving of the prescribed bond was a prerequisite to an appeal to the County Court by either party. In regard to the recovery of damages or expenses by a tenant who is appellee in the County Court under Rule 752 (formerly Article 3990), reference is made to Tallwater v. Brodnax, 137 Tex. 604, 156 S.W.2d 142 (1941); and Perry v. Leuttich, 132 Tex. 159, 121 S.W.2d 332 (1938), decided by the Commission of Appeals.

6 Tex. B.J. 49 (1943) reprinted in 8 Tex. B.J. 31 (1945).