Russell v. Koennecke

SWEARINGEN, J. Appellant, A. E. Russell, filed a partition suit against appellee, A. E. Koennecke. Appellee answered by a general demurrer to appellant’s petition. On tbe 22d day of February, 1916, tbe court rendered tbe following judgment: “No. 995. A. E. Russell v. Albert Koennecke. February 22, 1916. On this day came on to be heard the above numbered and styled case, defendant’s demurrer to plaintiff’s original petition, and after hearing the same and plaintiff’s petition, it is considered by the court that the law is with, the defendant, wherefore it was ordered and adjudged that the said demurrer be sustained, and, plaintiff refusing to amend, it was further ordered and adjudged that this case be and is dismissed, that the defendant, Albert Koennecke, have and recover from plaintiff, A. E. Russell and the sureties, James Raley and Jennie Raley, all costs in this behalf expended, for which execution will issue.” On February 23, 1916, tbe following was filed: “Plaintiff, having filed a trial amendment, refuses to further amend, and the cause is dismissed, to which plaintiff excepts 'and gives notice of appeal on the ground that the petition is a good one and the demurrer was not called to the attention of the court at the first term when the business of the court did not interfere.” Tbe only assignments complain of tbe order of tbe court sustaining tbe demurrer; consequently there is no statement of facts. Tbe transcript shows no notice of appeal given by appellant in open court. For this reason this appellate court has no authority to consider tbe case. W. U. Tel. Co. v. O’Keefe, 87 Tex. 423, 28 S. W. 945; McMillan v. White House Lumber Co., 149 S. W. 734; Houston & T. C. R. Co. v. Parker, 104 Tex. 162, 135 S. W. 370; 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. Tbe paper filed February 23, 1916, and copied above in no way identifies tbe case at bar. Tbe style of tbe case and tbe file number do not appear on it; neither does it describe any judgment nor order, and it is not signed. Even if it did identify tbe case, filing it with tbe clerk does not constitute notice of appeal. Notice of appeal made in a particular manner is necessary to give this court jurisdiction of tbe cause. R. C. St. art. 2085. Furthermore, if notice of appeal could be given by filing a written statement to that effect with the clerk, still, if it was not brought to tbe attention of tbe court, it was not notice made in open court, which is tbe manner of giving tbe notice required by .the statutes. Gibson v. Singer Sewing Machine Co., 147 S. W. 284. Because tbe record does not show that appellant gave notice of appeal in open court, tbe cause will be dismissed from tbe docket of this court; and it is so ordered. Dismissed.