Smith v. Richardson

Court of Appeals of Texas

Smith v. Richardson

138 S.W. 426, 1911 Tex. App. LEXIS 846

DecidedMay 31, 1911

StatusPublished

This text of 138 S.W. 426 (Smith v. Richardson) 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

Smith v. Richardson, 138 S.W. 426, 1911 Tex. App. LEXIS 846 (Tex. Ct. App. 1911).

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Opinion

Motions to Dismiss Appeals.

NEILL, J.

These two motions are in cases of the same style; the first being numbered on our docket as 4,763, the other as 4,764.

The alleged grounds for dismissal in each motion are substantially the same, and are: (1) That the appellant has attempted to appeal as though the judgment were a mere order dissolving an injunction, whereas the judgment is, in fact, final; and (2) the transcript of the record is not indorsed and signed officially as required by law.

[1] The first is no ground for dismissal at all. While, as asserted in the motions, the judgments are final and fully dispose of the subject-matter of the litigation, they can be appealed from as well as an interlocutory order dissolving a temporary injunction can.

[2] As to the second ground: While the transcript of the record in neither case is indorsed by the clerk, as required by rule 98 of the district court (67 S. W. xxvii), yet, after the clerk’s certificate that the transcript contains a true and correct transcript of the record of all the proceedings had in the cause, etc., there appears, written on the .same page, the words of the indorsement required by said rule. We do not believe that, because this was written on a page of the transcript, instead of on the hack of it, this affords any ground for dismissing the appeals.

Therefore each motion is overruled.

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Motions to Dismiss Appeals.

NEILL, J.

These two motions are in cases of the same style; the first being numbered on our docket as 4,763, the other as 4,764.

The alleged grounds for dismissal in each motion are substantially the same, and are: (1) That the appellant has attempted to appeal as though the judgment were a mere order dissolving an injunction, whereas the judgment is, in fact, final; and (2) the transcript of the record is not indorsed and signed officially as required by law.

[1] The first is no ground for dismissal at all. While, as asserted in the motions, the judgments are final and fully dispose of the subject-matter of the litigation, they can be appealed from as well as an interlocutory order dissolving a temporary injunction can.

[2] As to the second ground: While the transcript of the record in neither case is indorsed by the clerk, as required by rule 98 of the district court (67 S. W. xxvii), yet, after the clerk’s certificate that the transcript contains a true and correct transcript of the record of all the proceedings had in the cause, etc., there appears, written on the .same page, the words of the indorsement required by said rule. We do not believe that, because this was written on a page of the transcript, instead of on the hack of it, this affords any ground for dismissing the appeals.

Therefore each motion is overruled.

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Bluebook (online)

138 S.W. 426, 1911 Tex. App. LEXIS 846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-richardson-texapp-1911.