Kirby v. S. Texas Nat. Bank

In this case the judgment sought to be appealed from was rendered on March 3, 1939, and spread on the minutes on March 6th, but appellant did not give notice of appeal until March 15th. There was no motion for new trial filed in the case.

It is provided by statute that "an appeal may * * * be taken * * * by the appellant giving notice of appeal in open court within two days after final judgment * * *." Art. 2253, R.S. 1925, as amended by Acts 1927, 40th Leg. p. 21, ch. 15, § 1, Vernon's Ann.Civ.St. art. 2253.

This requirement is jurisdictional, and where, as in this case, the notice is not given in the time and manner required, the appeal will be dismissed. 3 Tex.Jur. p. 273, § 179; Lockhart v. Lockhart, 1 Tex. 199; Lyell v. Guadaloupe County, 28 Tex. 57; Western Union Tel. Co. v. O'Keefe, 87 Tex. 423, 28 S.W. 945; Houston Life Ins. Co. v. Dabbs,125 Tex. 100, 81 S.W.2d 42; Golden West Oil Co. v. Golden Rod Oil Co., Tex. Civ. App. 285 S.W. 627; Eclipse Paint and Mfg. Co. v. Roofing Co.,55 Tex. Civ. App. 553, 120 S.W. 532; Gordon v. McCall, Tex. Civ. App.56 S.W. 219; Sovereign Camp, W. O. W. v. Shaddox, Tex. Civ. App.217 S.W. 1094.

Appellee's motion to dismiss must be granted, and the attempted appeal dismissed.