Davenport v. Kelly

WALTHALL, J.

This suit was brought in the county court of Comanche county by R. H. Kelly, trustee, suing therein as plaintiff, for tlie benefit of himself and the stoekhold-ers of the Farmers’ & Merchants’ State Bank of- Gustine, Tex., and against appellant, Roy J. Davenport. The cause was tried by the court, who rendered judgment in favor of appellee for the amount sued for. Appellee objects to a consideration by this court of this appeal and of the brief of appellant, on the ground that it does not appear, from the minutes of the county court, as shown by the transcript, that notice of appeal from the judgment of the trial court was given in open court.

This objection is sustained by the record, and this court is without jurisdiction to hear this appeal. Article 2084, R. S., provides that an appeal may be taken during the term of the court at which the final judgment in the cause is rendered by the appellant, giving notice of appeal in open court within two days after final judgment overruling a motion for a new trial. The record does not disclose that the notice of appeal was given in open court,' but shows to the contrary. Western Union Telegraph Co. v. O’Keefe, 87 Tex. 428, 28 S. W. 945; Beaumont v. Newsome, 143 S. W. 941. For the reason stated, the appeal must be dismissed, and it is so ordered.