
    OSBORNE et al. v. STATE.
    (No. 8512.)
    (Court of Criminal Appeals of Texas.
    April 8, 1925.
    On Motion for Rehearing, June 10, 1925.)
    Bail <&wkey;>94 — Appeal bend held defective requiring dismissal of cause.
    An appeal bond in a proceeding to forfeit a bail bond, which states that the appeal is to the Court of Civil Appeals for the Second Supreme Judicial District, and is conditioned to pay costs accruing in such court and in the Supreme Court, is defective, and insufficient on which to base appeal to Court of Criminal Appeals, and cause will be dismissed.
    Commissioners’ Decision.
    Appeal from District Court, Stephens County; C. O. Hamlin, Judge.
    Action by the state of Texas against J. H. Osborne and another to forfeit a bail bond. Prom a, judgment for the state, defendants appeal.
    Dismissed.
    T. B. Ridgell, of Breckenridge, for appellants.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

This is an appeal from the Ninety-Second District Court of Stephens county from a judgment upon a forfeited bail bond.

Tbe state bas filed a motion to dismiss this case on tbe grounds that tbe appeal bond is defective, in that it states that appellants bave appealed to tbe Court of Civil Appeals for tbe Second Supreme District, and is conditioned to pay all costs wbicb may accrue in said court and tbe Supreme Court; and because tbe appellants bave’ not filed briefs in keeping witb rules of tbe district court and Court of Civil Appeals. Tbe appeal bond states:

“Pete Walcott and L. H. Welch bave taken an appeal to our Honorable Court of Civil Appeals for the Second Supreme Judicial District of Texas, * * * conditioned that the said Pete Walcott and L. H. Welch shall prosecute their appeal to effect, and shall pay all the costs which have accrued in the court below, or which may accrue in the Court of Civil Appeals and the Supreme Court.”

This bond is defective, and in our opinion is insufficient to base an appeal to this court, and that said motion to dismiss should be sustained. Tbe state also moves to dismiss this case, because same is not briefed in keeping witb the rules required in civil cases, but in view of the appeal bond being defective we deem it unnecessary to pass upon that issue.

We therefore conclude that tbe state’s motion should be granted and said cause be dismissed for tbe reasons above stated, wbicb is accordingly done.

PER CURIAM. The foregoing opinion of tbe Commission of Appeals bas been examined by tbe judges of tbe Court of Criminal Appeals and approved by tbe court.

On Motion for Rehearing.

HAWKINS, J.

After expiration of the time allowed, appellants present a motion to reinstate their appeal, in connection witb wbicb they exhibit what purports to be a new appeal bond, in lieu of tbe one held to be defective. Attached to tbe motion are affidavits by which it is sought to excuse tbe delay in filing the motion. We bave examined them, and in our opinion tbe matters' therein stated do not furnish sufficient reasons to excuse such delay.

Tbe state calls attention to tbe fact that tbe original bond was filed too late, and that under such circumstances, even if not defective, it would bave been insufficient to perfect an appeal, and therefore this is not a case where tbe appeal can later be perfected by filing a new bond. Tbe trial court adjourned on tbe 27th day of October. Tbe appeal bond should bave been filed within 20-days after adjournment. Article 2084, R. C. S. It was not filed until tbe 17th day of November, being one day too late. .There seems to be force in tbe state’s contention. Harvey v. Cummings, 62 Tex. 186; T. & P. Ry. Co. v. Midland Mercantile Co. (Tex. Civ. App.) 181 S. W. 270. However,, we mention this, only in passing, as tbe motion to reinstate may be disposed of upon tbe first ground stated,

Tbe motion is overruled.  