Rebecca Evans et al. v. Webb Smith et al., 22 Tex. Civ. App. 472

FISHER, Chief Justice. —This is a motion by appellees to dismiss the appeal because it is not shown by the record that notice of appeal was given in the lower court. In reply to this motion, appellants stated that notice of appeal was in fact given, and requested a postponement of the consideration of this motion, so that they could have the trial court amend its record, showing that notice of appeal was in fact given.

Thereafter there was filed and submitted in this court what purports to be a transcript of the record of the trial court in passing upon the question whether or not notice of appeal was given by the appellants. It appears from this record that the appellants made their motion in the trial court to have the record there amended, showing that notice of appeal was given. The matter was heard and considered by the trial court, and it declined and refused to enter an order that such notice of appeal was given. From this order the appellants have appealed.

The facts in the record do not show any entry upon the docket or any memorandum or paper filed in the record of the case, showing that notice of appeal was given by the appellants; but to establish the fact that notice of appeal was given, appellants proposed to introduce the evidence of certain witnesses. Objections were urged to the introduction of this character of evidence, which were sustained, presumably upon the ground that a record could not be made or amended at- a subsequent term by paroi evidence; and the ruling of the court as to this effect is assigned as error.

Articles 1354 and 1355 of the Bevised Statutes, relating to the amendment of records and the correction of mistakes, were considered in the case of Railway v. Haynes, 82 Texas, 456, and the conclusion was reached that at a subsequent term the record could not be amended or corrected, except by reference to some entry upon the docket or memorandum found among the files of the case. This conclusion we think finds support in the cases of Blum v. Neilson, 59 Texas, 380; Hickey v. Behrens, 75 Texas, 495, and Ximines v. Ximines, 43 Texas, 464.

"With this construction of the statute, we conclude that there was no error in the ruling of the court in declining to admit paroi evidence, and in refusing and declining to correct and amend the record as requested. Therefore, we also conclude, as there is no statement in the record showing that notice of appeal was given, appellees5 motion to dismiss will be sustained. Motion granted.