Beversdorff v. Dienger , 141 S.W. 533 ( 1911 )

On Motion for Rehearing. While the decision was made in a case of trespass to try title in Smithwick v. Kelly, heretofore cited, it was directly in regard to the absolute necessity of notice of appeal being given on appeal from a judgment in probate matters in the county court to the district court, and the Smithwick-Kelly Case has been approved by the Supreme Court in the case of Western Union Tel. Co. v. O'Keefe, 87 Tex. 423, 28 S.W. 945, in an opinion delivered by the then Chief Justice R. R. Gaines. In that case it was said: "Smithwick v. Kelly is also an authority in point. That case involved the validity of an appeal from the county to the district court in a probate proceeding. No notice of an appeal appeared in the transcript of the proceedings of the county court. Upon collateral attack, the judgment of the district court was held void for the want of such notice, although the recitals contained in it showed that the appellee had appeared and the case had been tried upon its merits." These decisions are so plain that it is not necessary to discuss or construe them. The notice of appeal and the filing of an appeal bond within 15 days were absolutely necessary to give the district court jurisdiction. We could not decide differently without overruling decisions of the Supreme Court. The case of Glenn v. Kimbrough, 70 Tex. 147, 8 S.W. 81, relied on by appellant, has never been cited but once, so far as we know, by the Supreme Court, and that was in order to overrule it, or at least to adopt another and different rule.

The motion for rehearing is overruled.