Cross v. Crosby

42 Tex. 114

• Court: Texas Supreme Court
• Decided: July 1, 1874
• Status: Published

Opinion

Roberts, Chief Justice.

This is an appeal from a judgment of the District Court on a motion- made by appellants to set aside au execution and sale made under it.

The transcript contains the judgment on the motion, which recites “that said motion be and the same is hereby overruled, and that the defendant recover of the plaintiffs the costs of this motion, to which ruling of the court the plaintiffs by their counsel except, and give notice of appeal.

The whole of the balance of the transcript is an agreement by the counsel of both parties of what are the questions in the appeal, and of the matters which they deem necessary to decide them, setting out therein the records and papers pertaining to said motion, which agreement is signed by the counsel of both parties, but not approved by the presiding judge of the court in which the judgment was rendered.

It is probable that the judgment on the motion was also intended to be embraced in the agreement, so as to bring up the appeal upon an “ agreed case.”

In such case it is necessary that the agreement should have the “ consent and approval of the judge who tried the cause,” with his certificate thereto annexed. (Pas. Dig., art. 1516.)

For the want of a compliance with the statute, we have no authority to recognize this transcript as containing an appeal in an agreed case, therefore the appeal must be ’dismissed.

Dismissed.