Earnest v. Couch

On October 4, 1933, we entered a Judgment affirming this cause upon certificate. Appellant, D.C. Earnest, has filed his motion for a rehearing.

It is made to appear by the certificate of the clerk of the court below that the final judgment in this cause was not spread upon the minutes until July 10, 1933. There can be no appealable final judgment until it is spread upon the minutes; therefore, the time within which the transcript must be filed in the Court of Civil Appeals must be computed from the date the judgment is actually spread upon the minutes. Commercial State Bank v. Blackwell (Tex.Civ.App.) 61 S.W.2d 563; Hamilton Motor Co. v. Muckleroy (Tex.Civ.App.) 46 S.W.2d 451. See, also, Hunter v. Moore (Tex.Com.App.) 62 S.W.2d 97.

However, it further appears from the record that appellant filed his appeal bond on July 5, 1933, five days before the final judgment was entered. The appeal bond was prematurely filed and is insufficient to give this court jurisdiction. Owen W. Kilday v. Alamo Post No. 2 (Tex.Civ.App.) 65 S.W.2d 429; Cooper v. Carter (Tex.Civ.App.)233 S.W. 1020; Stinnett v. Dudley (Tex.Civ.App.) 277 S.W. 801; Burnette v. Miracle (Tex.Civ.App.) 295 S.W. 214; Burris v. Myers (Tex.Civ.App.) 49 S.W.2d 930; Brinkley v. State (Tex.Civ.App.) 49 S.W.2d 516; Swanson v. Holt (Tex.Civ.App.) 56 S.W.2d 266.

The judgment heretofore rendered affirming this cause on certificate is set aside, and the application for an order requiring the clerk of this court to file the transcript herein is in all things denied.