Berry v. Blankenship

| Tex. | Oct 15, 1867

Morrill, C. J.

In this case plaintiff recovered a judgment against defendant for two slaves: named Peter, of the value of $1,000, and John, of the value of $1,200, and $200 attorneys’ fees, and $45 for hire of said slaves, and if the possession of said slaves cannot be had, then a judgment for $2,200. Judgment rendered 19th Hovember, 1861.

Motion for new trial overruled, and notice of appeal given, and bond perfected 10th December, 1861.

Certificate of judgment, &c., demanded 18th October, 1866, and filed in this court 22d October, 1866.

As the succeeding term of the Supreme Court, with reference to the appeal, was the court in 1862, the plaintiff, agreeably to the statute, (Paschal’s Dig., Art. 1587,) had until the time appointed by the court in 1862 to file with this court the record, and in case he did not so file the record on or before the time appointed for taking up the causes of the district to which the county of McLennan belonged, then it would have been legal for the appellee, or defendant in error, as the case might be, to file the certificate of judgment and process of appeal, and have the judgment affirmed. (Paschal’s Dig., Art. 1589.)

The statute does not declare in express words that the certificate of the clerk shall not be filed after the close of the term of the court next succeeding the perfecting the appeal, but the inference seems to be such. (Paschal’s Dig., Art. 1590.)

Paschal’s Digest, article 1590, provides, that in all cases where the supreme court shall have affirmed the judgment of the court below under the provision of the next preceding section, said court may, at any time during the term at which any such judgment was so affirmed, permit the transcript to be filed by the appellant or plaintiff in error, and the case to be tried on its merits, provided the appellant or plaintiff shall show to the court good cause why the transcript was not filed by him in accordance with the 5th and 6th sections of this act.

According to this statute, should we affirm the judgment agreeably to request of defendant, the plaintiff, by proper showing, could bring the case here at this court, though the judgment was rendered more than six years ago. But this would be so contrary to the statutes of the state, that the bare mention of it is sufficient to show the fallacy of it.

We therefore can come to no other conclusion, than that the certificate cannot be filed at any term of this court, except at the court to which the appeal or writ of error was returnable, and as the certificate in this case was filed four years after said term, it should be struck from the docket at the costs of the party filing the same.

Ordered accordingly. .