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Rule 572. Affidavit of Inability
Where appellant is unable to pay the costs of appeal, or give security therefor, he shall nevertheless be entitled to appeal by making strict proof of such inability within five days after the judgment or order overruling motion for new trial, which shall consist of his affidavit filed with the justice of the peace stating his inability to pay such costs, or any part thereof, or to give security, which may be contested within five days after the filing of such affidavit and notice thereof to the opposite party or his attorney of record by any officer of court or party to the suit, whereupon it shall be the duty of the justice of the peace in whose court the suit is pending to hear evidence and determine the right of the party to appeal, and he shall enter his finding on the docket as a part of the record. It will be presumed prima facie that the affidavit speaks the truth, and, unless contested within five days after the filing and notice thereof, the presumption shall be deemed conclusive; but if a contest is filed, the burden shall then be on the appellant to prove his alleged inability by competent evidence other than by the affidavit above referred to. If the justice of the peace denies the right of appeal, appellant may, within five days thereafter, bring the matter before the county judge of the county for final decision, and, on request, the justice shall certify to the county judge appellant's affidavit, the contest thereof, and all documents and papers pertaining thereto. The county judge shall set a day for hearing, not later than ten days, and shall hear the contest de novo, and if the appeal is granted, shall direct the justice to transmit to the clerk of the county court the transcript, records and papers of the case, as provided in these rules.
Source: Art. 2457.
Change: Allowing five days after the order overruling motion for new trial in which to file affidavit. Notice of the affidavit is to be given the opposing party. The burden is on affiant in the event of a contest. Transfer to the previous rule of provision prohibiting dismissal without allowing time to correct defects.
Oct. 29, 1940, eff. Sept. 1, 1941.
June 10, 1980, eff. Jan. 1, 1981