Opinion
No. 5040.
June 12, 1939.
Appeal from Kent County Court; J. B. Earnest, Judge.
Action by Vernon D. Adcock against the Universal Credit Company. From a judgment of the county court affirming the action of a justice's court in overruling defendant's plea of privilege, defendant appeals.
Reversed and remanded with instructions.
S. L. Lewis, of Dallas, for appellant.
Vernon D. Adcock, of Lamesa, and Glover E. Engledow, of Jayton, for appellee.
This suit originated in the justice court of precinct No. 2 of Kent County. A plea of privilege and controverting affidavit were filed in the justice court and the record indicates the plea of privilege was overruled. It is also indicated by the record that appellant appealed to the county court upon the plea of privilege and upon an adverse ruling in that court it appealed and the case is now before us upon a number of assignments of error directed to the action of the county court upon the hearing of the plea of privilege.
The record does not contain a transcript from the justice court showing the rendition of a final judgment by the justice of the peace. Appellee fully presents that phase in his brief and appellant has filed a reply thereto. It is, therefore, evident that both parties had notice of the condition of the record before the case was submitted in this court and neither of them has offered to correct the record nor asked for an opportunity to do so. We assume, therefore, that neither of them desires an opportunity to correct the record in this court.
The rule is well established that, in the absence of a showing of jurisdiction in the county court and in the absence of a transcript of the record from the justice court, this court is without jurisdiction to pass upon the appeal. Perry et al. v. Greer, 110 Tex. 549, 221 S.W. 931; Nordyke v. James, Tex.Civ.App. 272 S.W. 247; Anderson v. Fidelity Union Casualty Co., Tex.Civ.App. 44 S.W.2d 760; Chalk v. Chasteen et al., Tex.Civ.App. 279 S.W. 592.
Since all parties to the appeal have had ample notice of the condition of the record and none of them has requested an opportunity to make the necessary correction, the judgment of the trial court will be reversed and the cause remanded to that court, with instructions to dismiss it unless its jurisdiction is made to appear.
Reversed and remanded with instructions.