Opinion
No. 7346.
Decided July 5, 1939.
Writ of Error — Appeal and Error.
The action of the Court of Civil Appeals in refusing to affirm on certificate because no proper notice of appeal had been given, for which reason that court was without jurisdiction, was not a final judgment from which a writ of error would lie to the Supreme Court.
Error to the Court of Civil Appeals for the Second District, in an appeal from Montague County.
Suit by L. Keck against O. G. Roberson and wife in trespass to try title covering lot in Nocona, Montague County, Texas. Defendant answered with general denial and plea of not guilty. Judgment in favor of plaintiff was rendered in the trial court. The Court of Civil Appeals granted plaintiff's motion to affirm on certificate and dismiss the cause, because no record had been filed in that court, 108 S.W.2d 840, and defendants have brought error to the Supreme Court.
The case was referred to the Commission of Appeals, Section A, for their opinion thereon and the Supreme Court adopted same and ordered judgment entered in accordance therewith.
Application dismissed for want of jurisdiction.
Donald Donald, of Bowie, for plaintiffs in error.
True Strong, of Nocona, for defendant in error.
In this cause the Court of Civil Appeals declined to affirm on certificate, for the reason that no proper notice of appeal had been given, and therefore the Court was without jurisdiction. 108 S.W.2d 840.
In the case of Smith v. Free, 130 Tex. 23, 107 S.W.2d 588, there was presented precisely the same situation as we have here. In that case it was held that the action of a Court of Civil Appeals in refusing to affirm on certificate was not a final judgment from which an appeal could be prosecuted to the Supreme Court. Upon authority of that case it appears that the writ of error in this instance was improvidently granted.
We are advised by counsel that this cause has reached the Court of Civil Appeals by writ of error, just as did the case of Smith v. Free, and the objection to the action of the Court in refusing to affirm on certificate may be preserved when the cause is considered by the Court of Civil Appeals on its merits.
The application for writ of error is therefore dismissed for want of jurisdiction.
Opinion adopted by the Supreme Court July 5, 1939.