ON MOTION TO DISMISS. This is a motion by appellee to dismiss the appeal, because the affidavit filed in the District Court, where the cause was tried, "was made before the county judge of Cooke County, *Page 649 and it nowhere appears in the affidavit, in the petition, or elsewhere, that the plaintiff was a resident of that county."
This motion states the facts. Not even in plaintiff's petition does he give the county of his residence, nor is it shown in the statement of facts, or in the affidavit, and we approve the suggestion of the counsel that it would be eminently proper and better if in such cases the county of affiant's residence were stated in the affidavit. That is the proper place for it, though we do not mean to hold that if the fact appears in the petition or statement of facts it would not be sufficient.
In this case the appellant, in answer to this motion, filed his own affidavit and that of one of his attorneys, showing positively that, at the time he made said affidavit in lieu of appeal bond before the county judge of Cooke County, he was a resident of said Cooke County, and the question arises now whether we may consider his affidavits in order to determine whether he perfected his appeal so as to confer jurisdiction on this court in this case.
The article under which appellant has sought to appeal this case provides that when a party is unable to pay the costs of appeal or give security therefor, he still may prosecute his appeal by making strict proof of his inability to pay the costs or any part thereof; but this "proof shall be made before the county judge of the county where such party resides, or before the court trying the case, and shall consist of the affidavit of said party stating his inability to pay the costs." 1 Sayles' Civ. Stats., art. 1401.
If the affidavit was made before the county judge of any other county than that of appellant's residence, it would not perfect the appeal; but it will be observed that the statute does not require the affidavit to show the county of his residence, nor does it provide how or in what manner the fact must be made to appear, but it must appear to our satisfaction in some legal way that it was made before the county judge of the county in which he resided at the time it was made.
Our statute relating to the jurisdiction of the Courts of Civil Appeals, among other things, provides: "The said courts 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." 1 Sayles Civ. Stats., art. 998.
As the fact in controversy is one which must determine our jurisdiction to hear this appeal, we are of opinion that it is our duty to receive the affidavits; and the necessary fact being clearly proved by them, the motion to dismiss the appeal is overruled.
Overruled.
ON FINAL HEARING.