Burnette v. Miracle

Court of Appeals of Texas

Burnette v. Miracle

295 S.W. 214, 1927 Tex. App. LEXIS 357

CourtCourt of Appeals of Texas

DecidedMay 12, 1927

DocketNo. 2018.

StatusPublished

Cited by6 cases

This text of 295 S.W. 214 (Burnette v. Miracle) 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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Burnette v. Miracle, 295 S.W. 214, 1927 Tex. App. LEXIS 357 (Tex. Ct. App. 1927).

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Opinion

PEBPHREY, C. J.

This is an action in trespass to try title by appellant, Burnette, against appellee Miracle and .others. This case was tried and verdict returned at a term of the Sixty-Eighth district court which adjourned April 3, 1926. On April 30, 1926, appellant’s amended motion for new trial was overruled and order to that effect entered upon the minutes on the same date. At that time appellant gave notice of appeal as shown by the order. On May 15, 1926, appellant filed his appeal bond. On June 15, 1926, ap-pellee Miracle filed motion, setting up that, by inadvertence or mistake, the judgment in his favor theretofore rendered by the court had not been entered on the minutes, and prayed the entry of judgment in his favor nunc pro tunc. This motion was granted and on August 13, 1926, judgment entered nune pro tunc.

It is well settled that an appeal will not lie from a judgment rendered, but not entered upon the minutes. The appellate court has no jurisdiction of an appeal so attempted. Lane v. Ellinger, 32 Tex. 370; Trotti v. Kinnear (Tex. Civ. App.) 144 S. W. 326; Railway Co. v. Tram & Lumber Co., 50 Tex. Civ. App. 182, 110 S. W. 140. The right of appeal dates from the entry at a subsequent term of the judgment nunc pro tunc. Palmo v. S. W. Slayden & Co., 100 Tex. 13, 92 S. W. 796; Id. (Tex. Sup.) 92 S. W. 1167; Bassett v. Mills, 89 Tex. 162, 34 S. W. 93; Henry v. Boulter, 26 Tex. Civ. App. 387, 63 S. W. 1056.

In the present case the appeal bond was filed long before the entry of the judgment nunc pro tunc. It was prematurely filed and was insufficient to confer jurisdiction upon the Court of Civil Appeals of the judgment nunc pro tunc subsequently rendered and entered upon the minutes. Shields v. Amicable Life Ins. Co. (Tex. Civ. App.) 287 S. W. 293; Cooper v. Carter (Tex. Civ. App.) 233 S. W. 1020 ; Stinnett v. Dudley (Tex. Civ. App.) 277 S. W. 801; Railway Co. v. Atlantic, etc. (Tex. Civ. App.) 184 S. W. 294.

For the reason stated, this appeal must be dismissed for want of jurisdiction.

Dismissed.

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PEBPHREY, C. J.

This is an action in trespass to try title by appellant, Burnette, against appellee Miracle and .others. This case was tried and verdict returned at a term of the Sixty-Eighth district court which adjourned April 3, 1926. On April 30, 1926, appellant’s amended motion for new trial was overruled and order to that effect entered upon the minutes on the same date. At that time appellant gave notice of appeal as shown by the order. On May 15, 1926, appellant filed his appeal bond. On June 15, 1926, ap-pellee Miracle filed motion, setting up that, by inadvertence or mistake, the judgment in his favor theretofore rendered by the court had not been entered on the minutes, and prayed the entry of judgment in his favor nunc pro tunc. This motion was granted and on August 13, 1926, judgment entered nune pro tunc.

It is well settled that an appeal will not lie from a judgment rendered, but not entered upon the minutes. The appellate court has no jurisdiction of an appeal so attempted. Lane v. Ellinger, 32 Tex. 370; Trotti v. Kinnear (Tex. Civ. App.) 144 S. W. 326; Railway Co. v. Tram & Lumber Co., 50 Tex. Civ. App. 182, 110 S. W. 140. The right of appeal dates from the entry at a subsequent term of the judgment nunc pro tunc. Palmo v. S. W. Slayden & Co., 100 Tex. 13, 92 S. W. 796; Id. (Tex. Sup.) 92 S. W. 1167; Bassett v. Mills, 89 Tex. 162, 34 S. W. 93; Henry v. Boulter, 26 Tex. Civ. App. 387, 63 S. W. 1056.

In the present case the appeal bond was filed long before the entry of the judgment nunc pro tunc. It was prematurely filed and was insufficient to confer jurisdiction upon the Court of Civil Appeals of the judgment nunc pro tunc subsequently rendered and entered upon the minutes. Shields v. Amicable Life Ins. Co. (Tex. Civ. App.) 287 S. W. 293; Cooper v. Carter (Tex. Civ. App.) 233 S. W. 1020 ; Stinnett v. Dudley (Tex. Civ. App.) 277 S. W. 801; Railway Co. v. Atlantic, etc. (Tex. Civ. App.) 184 S. W. 294.

For the reason stated, this appeal must be dismissed for want of jurisdiction.

Dismissed.

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295 S.W. 214, 1927 Tex. App. LEXIS 357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burnette-v-miracle-texapp-1927.

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