Home/Court of Appeals of Texas/Kimberly Development Corp. v. First State Bank of Greens Bayou

Kimberly Development Corp. v. First State Bank of Greens Bayou

404 S.W.2d 631, 1966 Tex. App. LEXIS 3052
CourtCourt of Appeals of Texas
DecidedJune 16, 1966
Docket14834
StatusPublished
Cited by13 cases

This text of 404 S.W.2d 631 (Kimberly Development Corp. v. First State Bank of Greens Bayou) 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.

Bluebook
Kimberly Development Corp. v. First State Bank of Greens Bayou, 404 S.W.2d 631, 1966 Tex. App. LEXIS 3052 (Tex. Ct. App. 1966).

Opinions

WERLEIN, Justice.

This suit was brought by Kimberly Development Corp., allegedly a Texas corporation, James S. Taylor, Jr., and wife, Cherry King Taylor, and Howard S. Barksdale and wife, Teresa Barksdale, against First State Bank of Greens Bayou and First State Trust Corporation, for the purpose of having a deed of trust executed by Mr. and Mrs. Taylor and Mr. and Mrs. Barksdale declared invalid, and the foreclosure sale made under said deed of trust of the property described therein declared ineffective and void. The court, having considered the pleadings, consisting of plaintiffs’ original petition and defendants’ original, answer, the motion for summary o judgment of the defendants and their affidavit attached thereto, found that defendants’ motion for summary judgment should be granted, and judgment was accordingly rendered that the plaintiffs take nothing. Only Kimberly Development Corp. timely filed an appeal bond and perfected an appeal to this Court.

During argument of this case, the attorney for appellants was advised that according to the record before the Court only Kimberly Development Corporation had perfected an appeal to this Court, since Mr. and Mrs. Taylor and Mr. and Mrs. Barksdale had not filed an appeal bond. After submission of the case, appellant’s attorney filed herein a motion on behalf of Kimberly Development Corporation, Mr. and Mrs. Taylor and Mr. and Mrs. Barksdale, in which he -refers to all of them as appellants, and prays this Court for leave to file a supplemental transcript to include: (1) a judgment nunc pro tunc as of November 4, 1965, expressing the intent of the original parties to this action by stating “w/ notice of appeal for Plaintiffs,” and (2) an appeal bond filed by Kimberly Development Corp., James S. Taylor, Jr., Cherry King Taylor, Howard S. Barksdale, and Teresa Barksdale, appellants.

The original judgment in this case was entered by the court on November 4,' 1965. Under the signature of the judge who entered such judgment is written in longhand “w/ notice of appeal for Plaintiffs.” On January 3, 1966 a nunc pro tunc judgment was rendered and entered by the Court as of the 4th day of November, 1965. At the end of this judgment and above the judge’s signature and notation of entry, appears the following: “ * * * to which plaintiff excepted thereto and, in open court, gave plaintiff’s notice of appeal.”

It is our view that the notice of appeal given in the nunc pro tunc judgment of the trial court, especially in view of the notice of appeal in the original judgment, is a sufficient notice of appeal by all of the plaintiffs in the suit. Under Rule 3, [633]*633Texas Rules of Civil Procedure, the singular and plural number shall each include the other.

The original appeal bond filed on Novem-her 24, 1965, by appellant, Kimberly Development Corp., is as follows:

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Kimberly Development Corp. v. First State Bank of Greens Bayou
404 S.W.2d 631 (Court of Appeals of Texas, 1966)

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Bluebook (online)
404 S.W.2d 631, 1966 Tex. App. LEXIS 3052, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kimberly-development-corp-v-first-state-bank-of-greens-bayou-texapp-1966.