259 S.W. 305 | Tex. App. | 1923
No notice of appeal entered of record, in accordance with the provisions of Rev.St. art. 2084, appears in the transcript in this case. There is an affidavit that notice was given and the court refused to enter it of record. It has been held that the fact that notice was given may be shown otherwise than by the statutory entry. Western Union Telegraph Co. v. O'Keefe,
There appears in the transcript a paper styled "Plaintiff's First Amended Original Motion for New Trial and Reinstatement," but there are no file marks of any kind appearing on it. If the record contained an order on it, we should hold that the paper ought to be considered as having been filed and the file marks inadvertently omitted, either from the original or in preparation of the record. There appears in the transcript a docket entry, evidently a notation on the judge's trial docket, as follows: "Amended Motion for New Trial and Reinstatement Overruled." Underneath this appears the following: "Filed the second day of March, 1923. Mrs. J. A. Walker, Clerk District Court Wilbarger County, Texas." There is an attorney's affidavit in the record to the effect that on March 2d he filed a motion for new trial; that it was overruled; and that he gave notice of appeal, but the "court refused to enter said notice on the court docket, stating that it was too late to give notice for appeal."
The minutes of the court, made and entered in accordance with the provisions of articles 1694 and 1727, Revised Statutes, is the official record of the proceedings of the court. Notes on the judge's docket or affidavits as to the proceedings cannot be accepted as a substitute for such record. Swearingen v. Wilson,
The affidavit of the attorney and entry *306
on the judge's docket would indicate appellant's right to move for a nunc pro tune entry of the order overruling the motion for a new trial. Under the circumstances, we will set aside the submission and retain the case on the docket for a reasonable time to enable appellants to secure such nunc pro tunc entry and complete the record. See Wells v. Driskell,
In view of the statements made in the affidavit in the record, we deem it proper to say: That the trial court had the power during the term to set aside the judgment theretofore entered in the case. It was proper for the appellants to seek this action by motion. Even if the court should have concluded that the motion was filed too late and denied it for that reason, the appellants had the right to have the action of the court entered of record to the end that they might have a review of such decision on appeal. Dumas v. Easley (Tex.Civ.App.)
Litigants have the right to have the record show the proceedings, whatever they may be, and whether an appeal therefrom will lie is a matter for the determination of the appellate court.
