Kirby v. South Texas Nat. Bank of San Antonio

Court of Appeals of Texas

Kirby v. South Texas Nat. Bank of San Antonio

127 S.W.2d 955, 1939 Tex. App. LEXIS 638

CourtCourt of Appeals of Texas

DecidedApril 26, 1939

DocketNo. 10664.

StatusPublished

Cited by6 cases

This text of 127 S.W.2d 955 (Kirby v. South Texas Nat. Bank of San Antonio) 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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Kirby v. South Texas Nat. Bank of San Antonio, 127 S.W.2d 955, 1939 Tex. App. LEXIS 638 (Tex. Ct. App. 1939).

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Opinion

SMITH, Chief Justice. -

In this case the judgment sought to be appealed from was rendered on March 3, 1939, and spread on the minutes on March 6th, but appellant did not give notice of appeal until March 15th. There was no motion for new trial filed in the case.

It is provided by statute that “an appeal may * * * be taken * * * by the appellant giving notice of appeal in open court within two days after final judgment * * Art. 2253, R.S.1925, as amended by Acts 1927, 40th Leg. p. 21, ch. 15, § 1, Vernon’s Ann.Civ.St. art. 2253.

This requirement is jurisdictional, and where, as in this case, the notice is not giken in the time and manner required, the appeal will be dismissed. 3 Tex.Jur. p. 273, § 179; Lockhart v. Lockhart, 1 Tex. 199; Lyell v. Guadaloupe County, 28 Tex. 57; Western Union Tel. Co. v. O’Keefe, 87 Tex. 423, 28 S.W. 945; Houston Life Ins. Co. v. Dabbs,. 125 Tex. 100, 81 S.W.2d 42; Golden West Oil Co. v. Golden Rod Oil Co., Tex.Civ.App., 285 S.W. 627; Eclipse Paint and Mfg. Co. v. Roofing Co., 55 Tex.Civ.App. 553, 120 S.W. 532; Gordon v. McCall, Tex.Civ.App., 56 S.W. 219; Sovereign Camp, W. O. W. v. Shaddox, Tex.Civ.App., 217 S.W. 1094.

Appellee’s motion to dismiss must be granted,, and the attempted appeal dismissed.

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SMITH, Chief Justice. -

In this case the judgment sought to be appealed from was rendered on March 3, 1939, and spread on the minutes on March 6th, but appellant did not give notice of appeal until March 15th. There was no motion for new trial filed in the case.

It is provided by statute that “an appeal may * * * be taken * * * by the appellant giving notice of appeal in open court within two days after final judgment * * Art. 2253, R.S.1925, as amended by Acts 1927, 40th Leg. p. 21, ch. 15, § 1, Vernon’s Ann.Civ.St. art. 2253.

This requirement is jurisdictional, and where, as in this case, the notice is not giken in the time and manner required, the appeal will be dismissed. 3 Tex.Jur. p. 273, § 179; Lockhart v. Lockhart, 1 Tex. 199; Lyell v. Guadaloupe County, 28 Tex. 57; Western Union Tel. Co. v. O’Keefe, 87 Tex. 423, 28 S.W. 945; Houston Life Ins. Co. v. Dabbs,. 125 Tex. 100, 81 S.W.2d 42; Golden West Oil Co. v. Golden Rod Oil Co., Tex.Civ.App., 285 S.W. 627; Eclipse Paint and Mfg. Co. v. Roofing Co., 55 Tex.Civ.App. 553, 120 S.W. 532; Gordon v. McCall, Tex.Civ.App., 56 S.W. 219; Sovereign Camp, W. O. W. v. Shaddox, Tex.Civ.App., 217 S.W. 1094.

Appellee’s motion to dismiss must be granted,, and the attempted appeal dismissed.

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127 S.W.2d 955, 1939 Tex. App. LEXIS 638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirby-v-south-texas-nat-bank-of-san-antonio-texapp-1939.

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