
    G., C. & S. F. R’y Co. v. P. F. Connerty.
    (No. 3014.)
    Appeal from Dallas Oounty.
    
      {Transferred from Austin.)
    
    J. W. Terry and Alexander & Clark, counsel for appellant.
    No counsel appeared for appellee.
   Opinion by

White, P. J.

§ 207. Appeal from justice’s court; motion to dismiss, must be made when; case stated. Judgment was rendered in justice’s court May 15, 1889. Appeal taken to the county court, and transcript and original papers filed in county court on 23d August, 1889. On September 30, 1889, appellee filed a motion to dismiss the appeal in the county court because, the transcript not having been filed by the first day of the second term of the county court after the appeal was perfected, the county court had no jurisdiction. Appellant asked that said motion be overruled, because the same was not made in the time required by law, and the irregularity alleged in said motion was thereby waived; that the transcript and papers were filed in the county court during said second term, while the plaintiff’s motion to dismiss was not filed until thirty-five days after the beginning.of the third term of' court; that, furthermore, plaintiff, having appeared in court, and continued this cause after said transcript was filed in the county court, by such appearance waived any right he might have had to dismiss the same on account of the irregularity complained of. The court sustained plaintiff’s motion and dismissed the appeal in the county court, from which judgment appellant prosecutes this appeal. The court erred in sustaining plaintiff’s motion dismissing the appeal. “When the transcript and papers from the justice’s court are not filed in the county court on or before the first day of the second term of the county court after the appeal is perfected, the appellee should then move to dismiss the appeal upon the said ground, and such motion should be granted; but such motion must be made at the second term of the court or it will be considered as waived, in case, the papers and transcript have in the meantime been filed. Such ground, being a mere irregularity, to be made available must be taken advantage of at the first opportunity.” [3 Civil Ca§. Ct. App., § 284.]

January 31, 1891.

Reversed and remanded.  