I dissent from the action of the majority in dismissing the appeal because of the failure of the appellant to file an appeal bond within twenty days from the date he gave notice he would prosecute an appeal from the judgment. By the terms of article 2253, R.S. 1925, a party appealing has thirty days after he gives such a notice in which to file such a bond, if at the time he gives the notice he resides out of the county in which the cause was tried. The notice in the instant case was given August 29. 1931, and the bond was filed September 26, 1931, which was less than thirty days after the time when the notice of appeal was given.
It appeared from uncontradicted affidavits made a part of appellant's answer to the motion to dismiss the appeal that at the time appellant gave the notice and during several months before and after that time he resided with his wife in Harris county. I do not understand the majority to be in the attitude of questioning the fact that it so appeared, if the fact could be proven by affidavits. Their position, as I understand it, is that such proof could not be made by affidavits.
It is expressly provided in article 1822, R.S. 1925, that Courts of Civil Appeals "shall have power, upon affidavit or otherwise as by the courts may be thought proper, to ascertain such matters of fact as may be necessary to the proper exercise of their jurisdiction." In the instant case the fact necessary to be determined was the county where appellant resided at the time he gave the notice of appeal. The allegation in his petition filed April 28, 1931, that he was then "a resident of Gregg county" did not prove that he did not reside out of that county August 29, 1931, when he gave the notice, and therefore the affidavits showing that he then resided in Harris county did not contradict the record in any proper sense. In that view, I think the cases cited by the majority do not support the conclusion they reached. The contrary view I think is, not only warranted by the statute, but by the holdings in Fine v. Freeman, 83 Tex. 529, 17 S.W. 783, 18 S.W. 963; Herd v. Bank (Tex.Civ.App.) 283 S.W. 1112; Smith v. Oil Co., 99 Tex. 77, 87 S.W. 660; Dixon v. Lynn (Tex.Civ.App.) 154 S.W. 656; Rushing v. Bank (Tex.Civ.App.)160 S.W. 337; Security Trust Life Ins. Co. v. Stuart, (Tex.Civ.App.)160 S.W. 108; Webster v. Ry. Co. (Tex.Civ.App.) 184 S.W. 295; Dial v. Rector, 12 Tex. 99; Harris v. Hopson, 5 Tex. 529; Hart v. Mills,31 Tex. 304. *Page 651