Rausch v. Western Union Telegraph Co.

70 S.W.2d 655, 1934 Tex. App. LEXIS 402

• Court: Court of Appeals of Texas
• Decided: March 21, 1934
• Docket: No. 9294.
• Status: Published

Opinion

MURRAY, Justice.

There is no order in this record showing that appellant gave notice of appeal in open court as required by article 2253, R. S. 1925, as amended by Acts 1927, c. 15, § 1 (Vernon’s Ann. Civ. St. art. 2253).

Final judgment was rendered herein on June 20, 1933, and on June 21, 1933, appellant filed with the clerk of the trial court the following instrument:

“Notice of Appeal to Fourth Supreme Judicial District Court.

“B. C. Rausch v. The Western Union Telegraph Company.

“Number B — 67496.

“In the Seventy-third Judicial District Court, County of Bexar, State of Texas.

“Comes now B. C. Rausch of San Antonio, Bexar County, Texas, plaintiff in the above entitled and numbered cause on this the 21st day of June, 1933, A. D. and files notice of appeal to the 4th Supreme Judicial District Court, to the erroneous sustaining of defendant company’s general demurrer on June 20th, 1933, A. D. by‘the 73rd Judicial District Court, to which the plaintiff in open court on the aforesaid date then and there duly excepted.

• “B. C. Rausch.”

This instrument asserts that appellant is filing notice of appeal and that he excepted to the judgment in open court, but fails to state that notice of appeal was given in open court.

The record must show, either in the final judgment or in some separate court order, that notice of appeal was given in open court. This is necessary to give this court jurisdic-

tion of the cause on appeal Russell v. Koennecke (Tex. Civ. App.) 190 S. W. 253; Western Union Tel. Co. v. O’Keefe, 87 Tex. 423, 28 S. W. 945; McMillen v. White House Lbr. Co. (Tex. Civ. App.) 149 S. W. 734; Houston & T. C. R. Co. v. Parker, 104 Tex. 162, 135 S. W. 369; El Paso & S. W. R. Co. v. Kelley, 99 Tex. 87, 87 S. W. 660; Smithwick v. Kelly, 79 Tex. 564, 15 S. W. 486; Republic Nat. Bank v. Jordan (Tex. Civ. App.) 17 S.W.(2d) 84; Gibson v: Singer Sewing Machine Co. (Tex. Civ. App.) 147 S. W. 285; Jones v. Baugh (Tex. Civ. App.) 277 S. W. 1091; Morris v. Auld (Tex. Civ. App.) 255 S. W. 253; R. S. 1925, art. 2253 as amended by Acts 1927, c. 15, § 1 (Vernon’s Ann. Oiv. St. art. 2253).

The appeal will be dismissed.