To hold that defendant can be prosecuted in these cases would violate the commerce clause of the Constitution. Waters-Pierce Oil Co. v. Texas, 177 U.S. 27; Hadley-Dean Co. v. Highland Glass Co., 143 F. 242, 244; Albertype Co. v. Gust-Feist Co., 102 Tex. 219[ 102 Tex. 219]; Eclipse Paint Co. v. New Process Roofing Co., 55 Tex. Civ. App. 553; Moroney Co. v. Goodwin Pottery Co. (Tex.Civ.App.), 120 S.W. 1088, 1091. The fact that the Harvester Company formerly carried on business in Kentucky does not alter the situation.
This requirement is jurisdictional, and where, as in this case, the notice is not given in the time and manner required, the appeal will be dismissed. 3 Tex.Jur. p. 273, § 179; Lockhart v. Lockhart, 1 Tex. 199; Lyell v. Guadaloupe County, 28 Tex. 57; Western Union Tel. Co. v. O'Keefe, 87 Tex. 423, 28 S.W. 945; Houston Life Ins. Co. v. Dabbs, 125 Tex. 100, 81 S.W.2d 42; Golden West Oil Co. v. Golden Rod Oil Co., Tex. Civ. App. 285 S.W. 627; Eclipse Paint and Mfg. Co. v. Roofing Co., 55 Tex. Civ. App. 553, 120 S.W. 532; Gordon v. McCall, Tex. Civ. App. 56 S.W. 219; Sovereign Camp, W. O. W. v. Shaddox, Tex. Civ. App. 217 S.W. 1094. Appellee's motion to dismiss must be granted, and the attempted appeal dismissed.
" Under the following authorities, we have reached the conclusion that the contract sought to be rescinded involved interstate commerce, and therefore the anti-trust statute enacted by our federal Congress, known as the Sherman Act (15 USCA § 1 et seq.), must be applied in order to determine the validity of said contract. United States v. Tucker (D.C.) 188 F. 741; Dr. Koch Tea Co. v. Malone (Tex.Civ.App.) 163 S.W. 662; Eclipse Paint Co. v. New Process Roofing Co., 55 Tex. Civ. App. 553, 120 S.W. 532; McCall Co. v. Stiff Dry Goods Co. (Tex.Civ.App.) 142 S.W. 659; Bogata Mercantile Co. v. Outcault Adv. Co. (Tex.Civ.App.) 184 S.W. 333. We are further of the opinion that the provisions of said contract, viz. 1, 4, and 5, supra, clearly attempted to fix the price for which the Cel-U-Loyd paints, sold and contracted to be sold by it in the future to appellee as appellant company's distributor in the state of Indiana, should be sold by dealers in that state, to whom appellee should sell paints purchased and to be purchased by him from appellant company, and are in violation of the Sherman Act as interpreted by and applied in the following cases: United States v. Kellogg Toasted Corn Flake Co. (D.C.) 222 F. 725, Ann.Cas. 1916A, 78; United States v. Keystone Watch Case Co. (D.C.) 218 F. 502; Dr. Miles Medicine Co. v. John D. Park Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502.
If the term of the court may by law continue more than eight weeks, the bond or affidavit in lieu thereof shall be filed within twenty days after notice of appeal is given, if the party taking the appeal resides in the county, and within thirty days, if he resides out of the county." Eclipse Paint Mfg. Co. v. New Process Roofing Supply Co., 55 Tex. Civ. App. 553, 120 S.W. 532. Without a notice of appeal actually given in open court, the appellate court cannot acquire jurisdiction of the case, even by consent of the appellee.
141 S.W. 533; Goldman v. Broyles (Tex.Civ.App.) 141 S.W. 283; Eclipse Paint Mfg. Co. v. New Process Roofing Supply Co., 55 Tex. Civ. App. 553, 120 S.W. 532.
In view of the record, this court is without jurisdiction to entertain the appeal, because the appeal bond was not filed in the time required by law According to the statute, the time for filing the bond in this case commenced when the notice of appeal was given. Rev.St. 1911, art. 2084; Railway Co. v. Elliston, 128 S.W. 675; Eclipse Paint Mfg. Co. v. Roofing Supply Co., 55 Tex. Civ. App. 553, 120 S.W. 532. Appeal dismissed.
See, also, Fuqua v. Pabst Brewing Co., 90 Tex. 298, 38 S.W. 29, 750, 35 L.R.A. 241; T. P. Coal Co. v. Lawson, 89 Tex. 394, 32 S.W. 871, 34 S.W. 919; Texas Brewing Co. v. Templeman, 90 Tex. 277, 38 S.W. 27. But it is further contended on the part of plaintiff in error that, notwithstanding said contract may be violative of the antitrust statutes, yet said statutes constitute no defense here, because the transaction involves interstate commerce, and cite in support of this contention, among others, the following cases: Albertype Co. v. Feist, 102 Tex. 219, 114 S.W. 791; McCall v. Stiff Dry Goods Co., 142 S.W. 659; Stein Double Cushion Tire Co. v. Fulton Co., 159 S.W. 1014; Eclipse Paint Mfg. Co. v. New Process Roofing Co., 55 Tex. Civ. App. 553, 120 S.W. 532; Maroney Hardware Co. v. Goodwin Pottery Co., 120 S.W. 1088; Miller v. Goodman, 91 Tex. 41, 40 S.W. 718. The majority of the above cases have been ably reviewed and distinguished by Mr. Justice Taliaferro in Watkins Medical Co. v. Johnson, supra, from the case of Fuqua v. Pabst Brewing Co., supra, and shown not to be in conflict therewith.
The transaction between appellant and appellee evidenced by the contract was interstate commerce, and hence not subject to the anti-trust laws of this state. Albertype Co. v. Gust Feist Co., 102 Tex. 219, 114 S.W. 791; Eclipse Paint Mfg. Co. v. New Process Roofing Supply Co., 55 Tex. Civ. App. 553, 120 S.W. 532; Moroney Hardware Co. v. Goodwin Pottery Co., 120 S.W. 1088; McCall Co. v. Stiff Dry Goods Co., 142 S.W. 661; Koch Vegetable Tea Co. v. Malone, 163 S.W. 663. Therefore the first and second assignments are overruled. There was evidence to support the finding involved in the judgment that appellee had received and accepted appellant's order at the time it received the latter's telegram of September 27, 1913. If, therefore, that telegram should be construed as one countermanding the order — and we think it should not be so construed — it did not have the effect appellant claims it had. Appellee's acceptance of the order completed the contract between the parties, and countermanding the order thereafterwards did not relieve appellant of the consequences the law attached to its breach of its contract. Therefore the fourth assignment is overruled.
That such a transaction constituted commerce between a citizen of Texas and a citizen of Minnesota is affirmed by several decisions of the appellate courts of this state. McCall v. J. D. Stiff Dry Goods Co. et al., 142 S.W. 659; Albertype Co. v. Feist Co., 102 Tex. 219, 114 S.W. 791; Eclipse Paint Mfg. Co. v. New Process Roofing Co., 55 Tex. Civ. App. 553, 120 S.W. 532; Erwin v. E. I. Du Pont De Nemours Powder Co., 156 S.W. 1097. The facts in the instant case, in so far as they bear upon the question of whether or not the transaction between appellant and appellee Malone involved interstate commerce, are so similar to the facts in the first case cited that the cases cannot be distinguished.
" The following cases and some others are often cited as holding contrary to the Fuqua Case: Miller v. Goodman, 91 Tex. 41, 40 S.W. 718; Albertype Co. v. Feist Co., 102 Tex. 219, 114 S.W. 791; Moroney Hdw. Co. v. Goodwin, 120 S.W. 1088; McCall v. Stiff Dry Goods Co., 142 S.W. 659; Eclipse Paint Co. v. New Process Roofing Co., 55 Tex. Civ. App. 553, 120 S.W. 532. Miller v. Goodman is not properly analogous. The only question there involved is the construction of articles 745 and 746, Revised Civil Statutes of 1895, which refer only to the limitation upon the power of a foreign corporation to do business in Texas.