Briley v. Brown

HALL, Justice. Appellant brought this suit against appel-lee to gain custody of two of appellant’s minor children. Following a trial without a jury, judgment was rendered that appellant take nothing. We affirm. ON APPELLEE’S MOTION TO DISMISS APPEAL This case was heard on July 18, 1974. At the conclusion of the hearing, the take-nothing judgment against appellant was announced by the trial judge in open court. Thereupon, appellant orally gave notice of appeal, and this notice was noted on the court’s docket at that time. The judgment was reduced to writing and signed and filed on August 15, 1974. The oral notice made in open court on July 18, 1974, is the only notice of appeal given by appellant. It was not incorporated into the written judgment. Appellee asserts that these undisputed facts establish that the notice of appeal does not satisfy the requirements of Rule 353, Vernon’s Tex.Rules of Civil Procedure; and that we must therefore dismiss the appeal for want of jurisdiction. An appellate court does not acquire jurisdiction of an appeal where a notice of appeal has not been given within the time and manner required by law. Howe v. Howe, (Tex.Civ.App.—Eastland, 1949, writ ref.) 223 S.W.2d 944. The pertinent part of Rule 353 is paragraph (a) thereof which provides as follows : “An appeal, when allowed by law, may be taken by notice of appeal (1) in open court, noted on the docket or embodied in the judgment, order overruling motion for new trial, or other minute of the court, or (2) filed with the clerk; such notice to be given or filed within ten days after the judgment or order overruling motion for new trial is rendered.” Appellee’s motion for dismissal is based upon the contention that the term “within ten days after the judgment is rendered” in Rule 353 refers to the court’s signed judgment, and not to the court’s oral pronouncement of judgment. If this is true, appellee argues, then, because appellant’s notice of appeal preceded this time span, it was not in compliance with the rule, was premature, and was ineffective. In support of this argument, appellee cites Shepherd v. City of Austin, (Tex.Civ.App.—Austin, 1971, writ ref., n. r. e.) 467 S.W.2d 611; Grivel v. Atlantic Mutual Ins. Company, (Tex.Civ.App.—Corpus Christi, 1974, writ ref., n. r. e.) 513 S.W.2d 297; and Texas Gulf Coast Const. Co. v. Houston Shell & Concrete, (Tex.Civ.App.—Hou. 1st, 1974) 517 S.W.2d 650. Rule 306c provides that a notice of appeal shall not be held ineffective merely because it is premature; and that “every such . . . notice of appeal shall be deemed to have been filed on the date of but subsequent to the rendition of the judgment appealed from." Appellant’s notice of appeal fulfilled the requirements of Rule 353 in these respects: It was given orally in open court, and it was noted on the docket. We need not decide whether appellant’s notice was premature, for, if it was, it is validated and made effective by [359] the provisions of Rule 306c. Gray v. State, (Tex.Civ.App.—Texarkana, 1974, writ ref., n. r. e.) 508 S.W.2d 454, 456. All of the cases cited and relied upon by appellee show that the oral notices of appeal with which they are concerned were not noted on the docket. For this reason, if none other, the cases do not hear application here. Appellee’s motion to dismiss is overruled.