Keys v. Alamo City Baseball Co.

142 S.W.2d 694, 1940 Tex. App. LEXIS 620

• Court: Court of Appeals of Texas
• Decided: July 10, 1940
• Docket: No. 10901
• Status: Published

Opinion

SMITH, Chief Justice.

Appellee, Alamo City Baseball Company, has filed its motion, first, to dismiss the appeal because the appeal bond was not timely filed, second, to strike statement of facts .because it includes an ex parte statement of the official court reporter, and, third, in the alternative, to strike the ex parte statement from the filed statement of facts.

The appeal bond was timely filed below, that is, within thirty days after motion for new trial was overruled, but it - is defective in form and substance in that it does not disclose the date of, or efficiently describe, the judgment from which appeal is sought to be prosecuted. These defects, however, are such as may be cured by substituting a proper new bond, which will be allowed. Art. 1840, R.S.; 3 Tex.Jur. p. 344, §§ 241, 242.

The court reporter has attached to the statement of facts an ex parte statement, under date of May 23, 1940, which, not having been agreed to by the parties or approved by the trial judge, cannot be considered for any purpose on this appeal, and will therefore be stricken as prayed for by appellee. 3 Tex.Jur. p. 627, § 440. But this does not warrant striking the entire statement of facts.

Accordingly, appellee’s motion to dismiss the appeal will be overruled on condition that appellant file a new and sufficient appeal bond, approved by the clerk of this Court, on or before July 20, 1940; otherwise the appeal must be dismissed. Ap-pellee’s motion to strike statement of facts will be overruled, but its motion to strike the ex parte statement of the court reporter will be granted, all at the cost of appellant