Opinion
Decided February 1, 1905.
Notice of Appeal — Amicus Curiae.
A notice of appeal can not be given for one appealing merely by an amicus curiae, and appeal taken thereon will be dismissed.
Appeal from the District Court of Comal County. Tried below before Hon. L. W. Moore.
N.H. Lassiter and Robert Harrison, for appellant.
F. J. Maier, for motion to dismiss, cited: Rev. Stats., art. 1387; San Antonio A. P. Ry. Co. v. McDonald, 31 S.W. Rep., 72; Estado Ld. C. Co. v. Ansley, 6 Texas Civ. App. 185[ 6 Tex. Civ. App. 185], 24 S.W. Rep., 933; Wesley v. Kuteman, 62 S.W. Rep., 1074.
This is a suit by the appellee against the Southern Railway Company, the St. Louis Southwestern Railway Company, the International Great Northern Railroad Company, the Texas Pacific Railway Company, Kansas City Southern Railway Company and the Choctaw, Oklahoma Gulf Railway Company, to recover damages in the sum of $600.
The judgment shows that all of the defendants except the Choctaw, Oklahoma Gulf Railroad Company were dismissed from the case, and judgment by default in the sum of $425 was rendered against the Choetaw, Oklahoma Gulf Railroad Company, from which judgment this road appealed.
The notice of appeal was given by a party merely as amicus curiae. It does not appear that at the time he was the agent for the railway company, or in any wise connected with the same; nor does it appear that he was the attorney for that company; but the fact is indisputable that he was merely acting as amicus curiae in giving the notice of appeal.
A motion is made and filed in this court asking us to dismiss the appeal, because notice of appeal was not given by the railway company or any person authorized to act for it. It is unnecessary for us to undertake to state what is the authority of an amicus curiae, or what office or function he may perform in appearing before the court and offering such suggestions as he may see proper to make, as we are clearly of the opinion that he has no power to represent a party in giving notice of appeal.
The motion is sustained and the appeal dismissed at the cost of the Choctaw, Oklahoma Gulf Railroad Company.
Appeal dismissed.