Noblett v. Olive

BOYCE, J. No notice of appeal entered of record, in accordance with the provisions of Rev. St. art. 2084, appears in the transcript in this case. There is an affidavit that notice was given and the court refused to enter it of record. It has been held that the fact that notice was given may be shown otherwise than by thé statutory entry. Western Union Telegraph Co. v. O’Keefe, 87 Tex. 423, 28 S. W. 945. And since the appellees do not contest the truth of the affidavit filed, and we have no reason to doubt its verity, we would be inclined to hold that the record shows jurisdiction in this court to entertain the appeal if it had contained the order overuling the motion for new trial. Without this order we cannot' determine whether the notice was given in time or not. There appears in the transcript a paper styled “Plaintiff’s First Amended Original Motion for New Trial and Reinstatement,” but there are no file marks of any kind appearing on it. If the record contained an order on it, we should hold’ that the paper ought to be considered as having been filed and the file marks inadvertently omitted, either from the original or in preparation of the record. There appears in the transcript a docket entry, evidently a notation on the judge’s trial docket, as follows: “Amended Motion for New Trial and Reinstatement Overruled.” Underneath this appears the following : . “Filed the second day of March, 1928. Mrs. J. A. Walker, Clerk District Court Wilbarger County, Texas.” There is an- attorney’s affidavit in the record to the effect that on March 2d he filed a motion for new trial; that it was overruled; and that he gave notice of appeal, but the “court refused to enter said notice on the court docket, stating that it was too late to give notice for appeal.” The minutes of the court, made and entered in accordance with the provisions of articles 1694 and 1727, Revised Statutes, is the official record of the i>roceedings 0f the court. Notes on the judge’s docket or affidavits as to the proceedings cannot be accepted as a substitute for such record. Swearingen v. Wilson, 2 Tex. Civ. App. 157, 21 S. W. 74; Massie v. State National Bank, 11 Tex. Civ. App. 280, 32 S. W. 797. The affidavit of the attorney and entry *306 on the judge’s docket would indicate appellant’s right to move for a nunc pro tunc entry of the order overruling the motion for a new trial. Under the circumstances, we will set aside the submission and retain the case on the docket for a reasonable time to enable appellants to secure such nunc pro tpnc entry and complete the record. See Wells v. Driskell, 105 Tex. 77, 145 S. W. 333 (2, 3). In view of the statements made in the affidavit in the record, we deem it proper to say: That the trial court had the power during the term to set aside the judgment theretofore entered in the case. It was proper for the appellants to seek this action by motion. Even if the court should have concluded that the motion was filed too late and denied it for that reason, the appellants had the right to have the action óf the court entered of-record to the end that they might have a review of such decision on appeal. Dumas v. Easley (Tex. Civ. App.) 219 S. W. 866. If notice of appeal was given, the court should have entered it on the docket, notwithstanding his opinion that it was not given in time. Litigants have the right to have the record show the proceedings, whatever they may be, and whether, an appeal therefrom will lie is a matter for the determination of the appellate court. Supplemental Opinion. The appellees have filed a supplemental transcript in this ease and move for the dismissal of the appeal. It appears from’this supplemental transcript that, after the suggestion made in the original opinion of this court as to the incompleteness of the record, the appellants moved in the court below for the entry of a nunc pro tunc order, overruling their motion for new trial, and showing notice of appeal. It appears from the supplemental transcript that the court did overrule the motion, on the 2d day of March, 1923, but that no notice of appeal was given until after the adjournment of court. The appellants do not contest this statement of the trial court, and there is nothing left for this court to do but to dismiss the appeal in accordance with the motion, and it is so ordered.