30 S.W. 435 | Tex. | 1895
The appeal in this case was dismissed by the Court of Civil Appeals of its own motion, because the transcript failed to show that notice of appeal had been given in the trial court. Thereupon the appellant filed a motion for a rehearing and to set aside the order of dismissal, in which it was alleged, that the notice of appeal had in fact been given in open court, and had been entered upon the judge's docket. The motion was supported by the affidavits of counsel, as well as by the certificate of the judge and that of the clerk of the court in which the case was tried. The motion was overruled. This was error. The Court of Civil Appeals should have set aside the *598 order of dismissal and granted a reasonable time to amend the minutes of the District Court and to perfect the record of their own court. Tel. Co. v. O'Keefe, decided at the present term (ante, p. 423).
Since the decision of the case cited, our attention has been called to the case of Cavanaugh v. Peterson,
The judgment of the Court of Civil Appeals is reversed, and the cause remanded to that court for proceedings in accordance with this opinion.
Reversed and remanded to Court of Civil Appeals.
Delivered March 18, 1895.