Anzaldua v. Whitman

OPINION

PER CURIAM.

Before us is appellees’ motion to dismiss the appeal. Final judgment was signed in this cause on June 2, 1983. The appeal bond was due to be filed within ninety (90) days of the signing of the judgment on August 31, 1983. TEX.R.CIV.P. 356(a).1 Appellants filed their appeal bond on the last day. The record was due to be filed in this Court on September 12, 1983. Rule 386.

As a result of a timely filed motion, the appellants were granted an extension of time to file the transcript and statement of facts. The transcript was subsequently timely filed with the Clerk of this Court. The statement of facts is due to be filed on January 23, 1984.

Appellees, represented on appeal by three different attorneys, have each filed motions to dismiss the appeal, and appellants have responded. In order to properly consider appellees’ motions, a brief review of relevant rulings of the trial court, the various responses by the parties and a chronological order of events is necessary.

June 2, 1983 Final judgment
August 31, 1983 A timely cash bond certificate was filed by appellants. Rule 354.
August 31, 1983 Appellants filed a Motion for a Transcript of the Record, Statement of Facts, and for Permission to Proceed on Appeal Without Giving Further Security Herein. Rule 355
September 7, 1983 Appellees filed a contest to appellants’ pauper’s affidavit. Rule 355(c)
September 7, 1983 The Official Deputy Court Reporter for the 105th Judicial District Court of Nueces County filed a contest to appellants’ pauper’s affidavit.
September 8, 1983 The Court Reporter filed a motion to increase the appeal bond. Rule 354(a)
September 10, 1983 The court increased the amount of bond to $43,500.00, to be filed by October 10, 1983.
September 17, 1983 The trial court entered an order denying appellants’ pauper’s affidavit. Rule 355(a)
September 22, 1983 This Court granted an extension of time to file the transcript and statement of facts.

Appellees’ motions to dismiss the appeal rely principally on the ground that after appellants’ appeal was perfected, the trial court entered an order increasing the amount of the bond, and appellant failed to comply with the order. Therefore, the appeal should be dismissed. We agree.

Rule 354(a), in part, provides:
“The trial court’s power to increase the amount of the bond shall continue for *173thirty days after the bond or certificate is filed, but no order increasing the amount of the bond shall affect perfecting of the appeal or the jurisdiction of the appellate court. If a motion to increase the amount of bond is granted, the clerk and official reporter shall have no duty to prepare the record until the appellant complies with the order increasing the bond. If the appellant fails to comply with such order, the appeal shall be subject to dismissal or affirmance under Rule 387.” (Emphasis added.)

In the case before us, the trial court entered an order increasing the amount of bond. The court set a date certain in which the increased bond was to be filed. The appellants did not comply with the court’s order. Therefore, the cause is subject to dismissal. Rules 354(a), 387. Rule 387(a) provides in part:

“(a) If an appeal or writ of error has been perfected, but is subject to dismissal for want of jurisdiction or for failure of appellant to comply with any requirements of these rules or any order of the court, the appellee may file a motion for dismissal ...”

In appellants’ unsworn answer to appellees’ motions to dismiss the appeal, appellants argued that the motions to dismiss must fail as a matter of law. Appellants state that the trial court failed to rule on appellees’ contest to his pauper’s affidavit as required by Rule 355(e) and, thus, the affidavit must be taken as true and appellants allowed to continue the appeal without a bond. Appellants are mistaken. An appeal can only be perfected once, either by the giving of a cost bond or by the filing of a proper affidavit, each method being exclusive of the other. De Miller v. Yzaguirre, 143 S.W.2d 425, 427 (Tex.Civ. App. — El Paso 1940, writ ref’d); McCartney v. Mead, 541 S.W.2d 202 (Tex.Civ.App. —Houston [1st Dist.] 1976, no writ). Appellants properly perfected their appeal by the filing of an appeal bond in the form of a cash bond certificate. The appeal was perfected, and the trial court had no further jurisdiction to take any action other than that allowed by the Rules. Panhandle Construction Co. v. Lindsey, 72 S.W.2d 1068 (Tex.1934); El Paso Moulding and Manufacturing Co., Inc. v. Southwest Forest Industries, Inc., 492 S.W.2d 331 (Tex.Civ.App. — El Paso 1973, writ ref’d n.r. e.).

We pause to note that even if the trial court had jurisdiction of this cause to rule on appellant’s pauper’s affidavit, the trial court overruled appellant’s affidavit by Order on September 17, 1983, within the time prescribed by Rule 355(e).

Since appellants did not file the increased appeal bond as ordered by the trial court, this appeal will be dismissed. Rules 354(a) and 387. Appellees’ motions to dismiss the appeal are granted.

APPEAL DISMISSED.

. All references are to Texas Rules of Civil Procedure.