Brazill v. Lloyds of America

Court of Appeals of Texas

Brazill v. Lloyds of America

103 S.W.2d 393, 1937 Tex. App. LEXIS 407

CourtCourt of Appeals of Texas

DecidedMarch 17, 1937

DocketNo. 9961

StatusPublished

This text of 103 S.W.2d 393 (Brazill v. Lloyds of America) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Brazill v. Lloyds of America, 103 S.W.2d 393, 1937 Tex. App. LEXIS 407 (Tex. Ct. App. 1937).

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Opinion

SMITH, Chief Justice.

In this case appellees have filed motion to dismiss the appeal, upon the ground that appellant did not give notice of appeal in the trial court. There is no recitation anywhere in the transcript that such notice was given. It does not appear in the judgment sought to be appealed from, which bears affirmative approval of the trial judge, as well as of counsel for each of the parties. The trial court clerk’s memoranda of orders, notices, and the like, and other incidents occurring in the trial court, do not include notice of appeal in this case, although the clerk’s certificate presented with the motion recites that such notices, when made in open court or within the hearing of the clerk, are always entered in the memoranda. So far as the judgment, the dockets, or the record at large discloses, no notice of appeal was given by appellant in the court below.

That such notice was in fact given, at any time below, is positively denied under oath by appellees’ counsel, and affirmed by affidavits of appellant and his counsel. This court declines to resolve the disputed issue, thus presented.

If the notice was given, it should be made to appear in the judgment, or otherwise of record; if actually given, but not included in the judgment as originally entered, the omission should have been supplied by entry of corrected judgment, nunc pro tunc. That course not having been pursued, and the evidence dehors the record being in irreconcilable conflict, this court has no other recoursfe than to dismiss the appeal.

Motion granted; appeal dismissed.

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SMITH, Chief Justice.

In this case appellees have filed motion to dismiss the appeal, upon the ground that appellant did not give notice of appeal in the trial court. There is no recitation anywhere in the transcript that such notice was given. It does not appear in the judgment sought to be appealed from, which bears affirmative approval of the trial judge, as well as of counsel for each of the parties. The trial court clerk’s memoranda of orders, notices, and the like, and other incidents occurring in the trial court, do not include notice of appeal in this case, although the clerk’s certificate presented with the motion recites that such notices, when made in open court or within the hearing of the clerk, are always entered in the memoranda. So far as the judgment, the dockets, or the record at large discloses, no notice of appeal was given by appellant in the court below.

That such notice was in fact given, at any time below, is positively denied under oath by appellees’ counsel, and affirmed by affidavits of appellant and his counsel. This court declines to resolve the disputed issue, thus presented.

If the notice was given, it should be made to appear in the judgment, or otherwise of record; if actually given, but not included in the judgment as originally entered, the omission should have been supplied by entry of corrected judgment, nunc pro tunc. That course not having been pursued, and the evidence dehors the record being in irreconcilable conflict, this court has no other recoursfe than to dismiss the appeal.

Motion granted; appeal dismissed.

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Bluebook (online)

103 S.W.2d 393, 1937 Tex. App. LEXIS 407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brazill-v-lloyds-of-america-texapp-1937.