On original submission of this cause, without written opinion, we sustained appellee's motion to affirm on certificate the judgment of the trial court. On motion for rehearing, appellant challenges the jurisdiction of this court, basing its contention on the ground that, at the time the record was filed in this court, no appeal from the judgment of the trial court was then perfected. On further review, we have reached the conclusion that we were in error in affirming the judgment.
On May 19, 1937, appellee, Ossie Hill, recovered judgment in the county court of Dallas county at law No. 1 against the appellant, Yellow Cab Corporation of Dallas, for the sum of $250, with 6 per cent. interest per annum thereon from the date of the judgment until paid, and all costs of suit. In due time, appellant filed its motion for new trial, and, on July 2, 1937, the court entered an order overruling the motion, to which the appellant excepted and gave notice of appeal. On July 19, 1937, appellant filed a writ of error bond in the sum of $750, payable to the defendant in error, in which indentifies the judgment entered and expressly recites that "from which judgment the said Yellow Cab Corporation of Dallas desires to sue out a writ of error (italicized in the record) to the Court of Civil Appeals for the Supreme Judicial District sitting at Dallas, Texas," and conditioned "that such plaintiff in error, Yellow Cab Corporation of Dallas, shall prosecute said writ with effect, and in case the judgment of the Supreme Court or the Court of Civil Appeals shall be against it, it shall perform judgment, sentence or decree and pay all such damages and costs as said Court may award against it."
Our statute, article 2249 et seq., R.S. 1925, as amended, Vernon's Ann.Civ.St. art. 2249 et seq., provides two methods of conferring jurisdiction upon the Courts of Civil Appeals to review the action of district courts in rendering final judgments; one is by appeal and the other by writ of error. Article 2252 defines the parties to each method: A party taking an appeal is called "appellant," and the adverse party the "appellee"; the party suing out a writ of error is called the "plaintiff in error," and the adverse party the "defendant in error." In cases of appeal, article 2253, as amended by Acts 1927, c. 15, § 1, Vernon's Ann.Civ.St. art. 2253, the appellant is only required to give notice of appeal and file with the clerk an appeal bond, or affidavit in lieu thereof, within 20 days of the expiration of the term, or after notice of appeal is given, if the party taking the appeal resides in the county where the judgment was entered, and within 30 days if he resides out of the county. Thus, when an appeal bond is filed, it has the effect to deprive the trial court of jurisdiction of the cause pending appeal. Such is not the case where the appeal is by writ of error. In cases of appeal by writ of error, the plaintiff in error is allowed to sue out a writ at any time within 6 months after the final judgment is rendered, article 2255, by filing with the clerk of such court a written petition for removal, article 2256, giving the names and residences of the parties adversely interested, describing the judgment with sufficient certainty as to identify it, article 2257, and by filing a writ of error bond, or affidavit in lieu thereof. Article 2258. Thus, it will be seen that, by this method of appeal, the filing of the petition and bond, or affidavit, are the two necessary prerequisites to divest the jurisdiction of the trial court and, as a legal result, cause the case to be pending in the appellate court from that date. It is not necessary that the petition and bond be filed at the same time, but it is necessary, before the appellate court acquires jurisdiction and before citation of error is issued by the clerk, that both the petition and bond for writ of error shall be filed with the clerk of the court below. Leonard v. Jackson, Tex. Civ. App.16 S.W.2d 1099, and authorities therein cited.
The filing of a writ of error bond, or affidavit in lieu thereof, alone does not confer jurisdiction on the appellate court, as is the case of the filing of an ordinary appeal bond. Thus, reasoning from the authorities, if a writ of error bond is filed and the appeal is not perfected by filing of the petition within the time required by law, the bond thus filed becomes functus officio and can form no basis to divest the *Page 1195 trial court of jurisdiction of the cause. Mowrey v. Fidelity Deposit Co. of Maryland, Tex. Civ. App. 251 S.W. 252; Kolp et al. v. Shrader, Tex. Civ. App. 168 S.W. 464; Washita Ranger Oil Co. et al. v. Disney et al., Tex. Civ. App. 264 S.W. 630.
A writ of error bond conditioned for suing out a writ of error, although filed within the time required for the filing of an appeal bond, as in the instant case, does not invoke the jurisdiction of the appellate court through the method of appeal, for the reason that the sureties on the writ of error bond signed same for the undertaking stated in the bond; that is, the suing out of a writ of error. A writ of error is deemed to have been sued out only when a petition and bond for the writ of error have been filed and citation issued and served on the adverse parties. It was for the prosecution of this undertaking that the sureties in the instant case avowedly obligated themselves when they signed the writ of error bond. There is nothing in the record indicating that the sureties on the writ of error bond consented to become bound for the prosecution of an appeal other than by writ of error. Thus, if and when the writ of error is not sued out in compliance with the statute, within 6 months from the date of the final judgment, the bond becomes functus officio.
In the case of Golden Rod Oil Co. No. 1 et al. v. Golden West Oil Co. No. 1 et al., Tex.Com.App., 293 S.W. 167, 168, pending motion for new trial and at a time that an ordinary appeal was available, plaintiffs in error sued out a writ of error by the filing of a petition and bond. The Commission of Appeals held that: "While they [appellants] would have had the right to appeal by giving notice and filing appeal bond, should their motion for new trial have been overruled, this did not prevent them from abandoning their motion and perfecting appeal by writ of error." So, in the instant case, the filing of the writ of error bond in the court below at a time an appeal was available did not have the effect of perfecting the appeal and did not effectively stay execution of the judgment, as no appeal had then been perfected by either of the two methods provided by law.
So, concluding, appellant's motion for rehearing is granted, the affirmance of the judgment of the court below is set aside, and appellee's motion to affirm on certificate is denied.