Hunt v. Wichita County Water Improvement Dist. No. 2 , 1948 Tex. App. LEXIS 1052 ( 1948 )

HALL, Justice.

On April 9, 1941, appellant, Marie Anchor Hunt, filed a petition in the form of a bill of review for the purpose of setting aside an adverse judgment rendered against her in the District Court of Wichita County, Texas, in the year 1930, and in favor of appellee, Wichita County Water Improvement District No. 2, based on a claim for delinquent taxes due the appellee by appellant, which resulted in the foreclosure of the judgment lien upon the lands in question owned by appellant.

On July 7, 1941, the appellee filed its answer setting up as a defense the judgment of the trial court in cause No. 23042-C and judgment of the Supreme Court in the case of Anchor v. Wichita County Water Improvement District No. 2, 129 Tex. 70, 103 S.W.2d 135, 112 A.L.R. 70, in bar of the allegations in the instant suit and filed other exceptions to appellant’s original petition.

On June 14, 1947, appellant filed her first amended original petition and again on June 24 of the same year filed her second amended original petition. To these petitions the appellee filed its various exceptions, which were sustained by the court, and on July 9, 1947 the court, after sustaining such exceptions, dismissed the suit with prejudice, from which judgment the appellant did not give notice of appeal.

On July 14, 1947 the appellant requested the court to grant her leave to file her third amended original petition. This was some five days after the court had entered its final judgment. The court having that in mind refused to grant such privilege and entered the following order, to-wit: “The plaintiff’s request for leave to file her Third Amended Original Petition herein is hereby refused. This the 14th day of July, 1947. To which action the plaintiff excepted and gave notice of appeal to the Court of Appeals for the Second Supreme Judicial District sitting at Fort Worth, Texas. H. W. Fillmore, Judge.”

We find therefore that the appellant gave notice of appeal from the order disallowing the filing of her third amended original petition and that she did not give notice of appeal from the final judgment in the case. She submits as a basis for her appeal the following:

“1. The plaintiffs’ Second -Amended Original Petition stated a cause of action, and the court, therefore, erred in sustaining the exceptions and in dismissing the case.

"2. The court erred in dismissing the case without affording the plaintiffs an opportunity to amend.”

Since we have found that no notice of appeal was given from the final judgment and that such notice of appeal is mandatory, the appellate court acquired no jurisdiction other than to .dismiss the appeal. Rule 353, Texas Rules of Civil Procedure and Backus v. Roper, Tex.Civ.App., 195 S.W.2d 261.