Messner v. Lewis
| Decision Date | 01 January 1856 |
| Citation | 17 Tex. 519 |
| Parties | D. MESSNER v. WILLIAM LEWIS AND OTHERS. |
| Court | Texas Supreme Court |
Where the appeal bond described the final judgment as the one appealed from, and there was no notice of appeal in the record, except from an order overruling a motion to quash an attachment which had been obtained, the appeal was dismissed. [1 Tex. 199;6 Tex. 76;28 Tex. 58, 91, 127;29 Tex. 127.]
Appeal from Washington. Tried below before the Hon. R. E. B. Baylor.
Suit by appellees against appellant, on note and account, commenced March 20, 1855; attachment obtained same time; returned levied on a stock of merchandise. Motion, October 4, 1855, to quash the attachment. Motion, April 16, 1856, to quash an amended return of the attachment. April 17, came the parties, etc.; motion to quash and demurrer overruled, and thereupon, etc.; judgment for plaintiffs for a certain amount “and that they have execution.” October 24, 1856, by consent, entry made nunc pro tunc, of overruling of the defendant's motion to quash the attachment, to which opinion of the court, overruling said motion, the defendant excepts, and prays his exception be noted on the record, which is accordingly done, and the defendant gives notice of an appeal to the supreme court, which is granted in the terms of the law.
The appeal bond recited the recovery of the judgment for the amount thereof on the 17th of April, 1856, from which said judgment the said Messner has prayed an appeal, etc.; now if the said Messner shall prosecute the said appeal with effect, etc.
Appellees objected to the entertainment of the appeal, on the ground that there was no appeal except from the overruling of the motion to quash the attachment, which was an interlocutory order from which an appeal would not lie.
Giddings & Giddings, for appellant.
A. M. Lewis and G. W. Horton, for appellees.
(No brief on motion to dismiss.)
This appeal was taken from the overruling of the motion to quash the attachment. The notice of appeal refers to that ruling, and has no reference to the final judgment. It cannot be held to apply to the final judgment thereafter rendered. The appeal bond describes the final judgment as the one appealed from, but there is in the record no notice of such appeal. Notice of appeal is essential to give this court jurisdiction of the case on appeal. (1 Tex. 199;6 Id. 76.) It is wanting in the present case.
The judgment upon the motion to quash the attachment was an interlocutory judgment, from...
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Kennedy v. C. H. Morrison. C. H. Morrison
...is essential to give the appellate court jurisdiction. Burr v. Lewis, 6 Tex. 80;Lockhart v. Lockhart, 1 Tex. 199. The case of Messner v. Lewis, 17 Tex. 519, is in point. In fact the appeal of the plaintiff is nothing more than an effort to amend in the supreme court a final judgment of the ......
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...and the appeal should be dismissed. Smith v. Cheatham, 12 Tex. 37; Horton v. Bodine, 19 Tex. 280; Williams v. State, 26 Ala. 85; Messner v. Lewis, 17 Tex. 519. The undertaking on appeal in this action is not accompanied by the affidavit of the sureties to the effect that each surety is wort......
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...as necessary to confer jurisdiction upon the appellate court. Burr v. Lewis, 6 Tex. 76; Lyell v. Guadaloupe Co., 28 Tex. 57; Messner v. Lewis, 17 Tex. 519. The practice also seems to be well settled for the appellate court, of its own motion, to take notice of the failure of the record to s......
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...by the petition and bond for writ of error, is interlocutory. See Little v. Morris, 10 Tex. 263;Miller v. Berry, 13 Tex. 208;Messner v. Lewis, 17 Tex. 519. That the final judgment in this case is not sufficiently described. See Graham v. Sterns, 16 Tex. 153. That the service on the attorney......