Hayslip v. Pomeroy

32 S.W. 124 | Tex. App. | 1894

At a former day of this term the appeal in this case was dismissed, because the record failed to show that notice of appeal was given. The appellants have filed a motion for a rehearing, accompanied by a showing, that in fact notice of appeal was given in the court below, which the clerk failed to embrace in the transcript; and also showing that appellants' counsel was not aware of the omission until after this court had dismissed the appeal.

While, as contended by appellants, it is the duty of the district or county clerk to prepare a proper transcript of the proceeding in an appealed case, still, it is the duty of the party appealing to see that the transcript is correct and complete before his case is submitted for decision.

It was held in Ross v. McGowen, 58 Tex. 603, that the right to a writ of certiorari to perfect the record must be limited to some point in the proceedings which must not extend beyond the date of the submission of the cause to the court for decision; and it is there intimated that the rule should be enforced regardless of excuses rendered for not discovering the defects and correcting the record before submission.

In the present case, it is not shown that proper diligence was exercised to discover the omission; and, following the rule announced in the case cited, the motion for a rehearing will be overruled.

Motion overruled.