Wesley v. Kuteman , 26 Tex. Civ. App. 365 ( 1901 )

This is a motion by appellants to require the clerk to file the transcript in this case. The transcript tendered for filing shows that this suit was brought by appellee, R.B. Kuteman, to recover title to land against a number of defendants, among whom were the appellants. A trial resulted in a judgment for plaintiff as against appellants, and in favor of the other defendants. Plaintiff filed a motion for a new trial, upon the overruling of which he gave notice of appeal, which was entered of record. No further effort was made by plaintiff to perfect his appeal. The appellants gave no notice of appeal, but within twenty days after the overruling of plaintiff's motion for new trial, they filed and affidavit of inability to give bond, in lieu of an appeal bond. It is essential to the right of appeal that the "appellant" give notice of appeal in open court. Rev. Stats., art. 1387. The appellants herein did not give notice of an appeal, but insist that the notice given by plaintiff, appellee here, inured to their benefit. In this we do not concur.

The affidavit in lieu of an appeal bond filed by appellants fails to identify the judgment with sufficient certainty. It fails to give the date of the judgment, the nature thereof, and in whose favor rendered. The same certainty is required as in an appeal bond. Perry v. Scott, 68 Tex. 208; Holmes v. McIntyre,61 Tex. 9.

The motion is refused.

Motion overruled.