(dissenting).
On a more careful examination of the record in this case on motion for rehearing, I find that the clerk of the trial court did not fix the probable amount of cost in this case; neither did such clerk approve the appeal bond. I seriously doubt that the appeal has been duly perfected, or that we have jurisdiction of the appeal. Pinkston v. Victoria Bank & Trust Co., Tex.Civ.App., 210 S.W.2d 612, no writ history; Horton v. Stone, Tex.Civ.App., 268 S.W.2d 247, no writ history. Although, there are authorities that seem to support the theory that where the bond was filed by the clerk within the time prescribed by law for filing appeal bonds, as was done in this case, it will be presumed that the clerk approved the bond. Bridges v. Cundiff, 45 Tex. 437,
*224Further a comment under Rule 430, V.A. T.R.C.P., we find the following:
“ ‘The courts of this state have passed upon every requisite of an appeal bond as (set forth in the statute), and have held as to each of them that a bond deficient as to any one of them is sufficient to confer jurisdiction on the appellate court, and may be amended when objected to. (Citing cases.)’ First State Bank & Trust Co. v. O. D. Mann & Sons, Tex.Civ.App.1919, 209 S.W. 683 (bond payable to appellant’s codefendants rather than to appellee, as it should have been). Accord: Williams v. Wiley, 1902, 96 Tex. 148, 71 S.W. 12, where the bond was for ‘all costs’ in the suit rather than for an amount double the costs, and the court said: ‘The bond shows on its face that it was filed as an attempt to comply with the statute in order to prosecute the writ of error, complies in most respects with the statute, and must be held sufficient, under the liberal provision quoted (now Rule 430), to give jurisdiction to the court, and to entitle plaintiffs in error to file a new one. It may, indeed, be seriously doubted whether or not, * * * it should longer be held that the jurisdiction of an appellate court at all depends on the giving of a bond.’ ”
I agree that liberal construction should be given to the Rules to entitle people to their day in court, but there must be some limitation on liberalism. It seems to me that the greater weight of presumption would be that a clerk did not intend to approve .a bond where there is no certificate attached or order of approval. It also seems to me that the Rule should be more specific as to sureties and the provision relating to approval of the bond should be held to be mandatory. If the bond is sufficient, we have jurisdiction of the appeal. If it is mot sufficient, and the Rule requires that it be approved within 30 days, we do not have jurisdiction of the appeal.
Further, I have concluded that we erred in affirming the judgment of the trial court in at least two, if not three, respects.
First, appellees sued for 60 acres of land. The evidence shows that there was 100 acres of land within the enclosure. If the pleadings are sufficient to recover only 60 acres of land (provided the 60 acres were actually enclosed within a fence, or enclosed within a fence along with other lands owned, used and occupied by appellees), then they are not sufficient to recover the entire 100 acres, because there is no allegation of ownership of the other 40 acres. The evidence shows that Montgomery used the entire tract, but he can not recover more than he sued for. I don’t think the case of Houston Oil Co. of Texas v. Skeeler, Tex.Civ.App., 178 S.W.2d 740, 741, cited in the original opinion, is authority for the holding in the original opinion. As a matter of fact, it is a holding to the contrary because to establish title to real property by limitation under the five and ten years statutes of limitation it must be shown that the land is completely enclosed within a fence within itself; or, “with other lands owned, used and occupied by [the claimants].”
Second, I think the trial court abused his discretion in refusing the appellees permission to file their trial amendment wherein they sought to plead title to the entire 100 acres. Appellants defended on the ground that there was 100 acres within the enclosure and established such fact by expert testimony without pleading such fact as an affirmative defense in the case. No question could arise but that they knew of these facts long before the trial and the case was tried with at least the implied consent that the appellees and their predecessors in title had been occupying, using and claiming all the land within the enclosure. Therefore, appellants could not have pleaded surprise. In a number of *225cases cited under Note 13, of Rule 67, V. A.T.R.C.P., the courts have consistently-held that permitting the filing of a trial amendment in such cases by trial judges was not an abuse of discretion. Thus, it seems to me, the failure to permit such trial amendment under such circumstances would and should constitute a clear abuse of discretion. This court held such refusal to constitute an abuse of discretion in the case of Shaw v. Tyler Bank & Trust Co., Tex.Civ.App., 285 S.W.2d 782, wr. ref. N.R.E.
Third, I think Montgomery, even though he contradicted some of his own testimony, admitted the cutting of timber off this land after he entered upon it, even as late as 1938 or 1939. There was no abandonment nor re-entry. The fact that one of the parties who cut the timber at the latter stage said he did not cut any from an enclosure indicates to me that the fence had not been kept up as contended by the ap-pellees. A careful study of Montgomery’s testimony clearly shows that timber was cut as late as 1938 or 1939, and that he made no objection whatever to such cutting and removing of the timber. Black v. Goolsbee, Tex.Civ.App., 226 S.W. 463, wr. dism.; and Coleman v. Waddell, 151 Tex. 337, 249 S.W.2d 912.
I also doubt the sufficiency of the testimony of Montgomery to show an intent to claim the land against the rightful owner. He entered upon it upon the belief that the land was vacant school land with the intention to “homestead” the same. Subsequently, he made no protest to the cutting of the timber; therefore, it seems to me that it was his intention to acquire title to the property by occupancy against a governmental agency and did not protest the ownership of the rightful owners. Smith v. Jones, 103 Tex. 632, 132 S.W. 469, 31 L.R.A.,N.S., 153.
I think the appellants’ motion for rehearing should be granted, the judgment of the trial court reversed and the cause remanded.