23 S.W.2d 444 | Tex. App. | 1929
This case was first tried in justice court, then appealed to county court. Appellant has sought to bring her case to this court by making a pauper's oath under the provisions of article 2266, Revised Statutes *445 1925. Appellee moves to dismiss the appeal on the following grounds:
First. No judgment overruling appellant's motion for a new trial and giving notice of appeal was entered of record during the April term, 1929, at which the case was tried. The following May term convened on the 6th day of May. Motion was filed during that term on the 11th day of May to enter this order nunc pro tunc, and judgment was duly entered accordingly. The affidavit in lieu of appeal bond was filed on May 7th and on that date approved by the county judge at law who tried the case during the April term. Appeal bond or affidavit in lieu thereof filed before the nunc pro tunc entry of the judgment appealed from is void as being insufficient to confer jurisdiction on the appellate court. The rule is thus stated by 3 Tex.Jur. 332: "Where the judgment was not entered at the term at which it was rendered, but is entered nunc pro tunc at a later term, an appeal bond filed before the judgment is entered of record does not confer jurisdiction on the appellate court." See, also, Stinnett v. Dudley (Tex.Civ.App.)
Second. The affidavit in lieu of bonds was filed during the May term of court, but there is no affirmative showing in the record that proof was made in open court of inability to pay or give security for costs, and the judge's order approving the affidavit as sufficient was not entered of record. On this showing the affidavit was insufficient to confer jurisdiction on this court. In Graves v. Horn,
Third. Appellant has failed to bring forward in her brief her assignments of error. On this ground the briefs must be stricken. Citizens' State Bank v. McMurrey (Tex.Civ.App.)
Appeal dismissed.