Voss v. Foster

COLLINGS, Justice.

Appellees herein have made a motion to this court to dismiss the appeal for want of jurisdiction, asserting that appellants failed to give notice of appeal within the time required by the Texas Rules of Civil Procedure.

The record shows that the judgment appealed from was dated and signed on July 27, 1970. The only notice of appeal was a written notice filed with the District Clerk on August 24, 1970.

Rule 353(a) of the Texas Rules of Civil Procedure provides that:

“(a) 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.”

Numerous cases have held that a proper notice of appeal within the ten day period required by the above rule is jurisdictional: Howe v. Howe, 223 S.W.2d 944, (Tex.Civ.App. writ ref.). Becnel v. Becnel, 336 S.W.2d 221, (Tex.Civ.App.1960, no writ hist.). Donald v. John Vinson, Inc., 344 S.W.2d 751, (Tex.Civ.App.1961, writ ref.). Glasscock v. Black, 272 S.W.2d 388, (Tex.Civ.App.1954). Curtis v. Carey, 378 S.W.2d 418, (Tex.Civ.App.1964, no writ hist.). Walker v. S & T Truck Lines, Inc., 409 S.W.2d 942, (Tex.Civ.App.1966, writ ref.). Brown v. Vander Stucken, 435 S.W.2d 609, (Tex.Civ.App.1968, no writ hist.). Greer v. City of Seguin, Tex.Civ.App., 458 S.W.2d 102.

The appeal is dismissed.