113 S.W.2d 515 | Tex. | 1938
In the trial court defendants in error sued plaintiffs in error for damages, and upon an instructed verdict judgment was rendered that they take nothing. That judgment was rendered and dated on March 19, 1937. On that date defendants in error in open court excepted to the judgment and gave notice of appeal to the Court of Civil Appeals at Amarillo. No motion for a new trial was filed. Defendants in error duly perfected their appeal by timely filing in the trial court their appeal bond, which was approved by the clerk. On May 29, 1937, defendants in error tendered the record to the clerk of the Court of Civil Appeals for filing and the clerk filed same on that day. This the clerk was not authorized to do, for it was not tendered him within sixty days from date of final judgment and no order of the court authorized its filing out of time. On June 10, 1937, more *225 than 75 days after final judgment had been entered in the cause, defendants in error for the first time filed a motion for permission to file the transcript and statement of facts out of time. On June 15, thereafter plaintiffs in error filed in the Court of Civil Appeals two motions, first, to strike the transcript and statement of facts, and, second, to affirm on certificate, the latter motion being accompanied by a certificate of the clerk of the trial court in due form of law. On June 28, 1937, the Court of Civil Appeals overruled the motion of defendants in error for permission to file the record out of time, overruled the motion of plaintiffs in error for affirmance on certificate and granted the motion of plaintiffs in error to strike the record, which had theretofore been filed out of time. In its judgment granting plaintiffs in error's motion to strike the transcript and statement of facts, the court ordered the appeal dismissed.
1, 2 The first question for decision is whether the judgment of the Court of Civil Appeals is a final judgment. This Court may review upon writ of error proceedings only final judgments of courts of civil appeals. Art. 1739. In Prince v. Guyer,
3 The right of plaintiffs in error to have the judgment of the trial court affirmed on certificate seems to be clear. Defendants in error did not file, or tender for filing, the record in the Court of Civil Appeals within the 60 day period prescribed by statute. Art. 1839. Their motion to file the record out of time was filed more than 75 days after final judgment was entered. By the provisions of Art. 1839 that motion comes too late if not filed within a reasonable time, not exceeding 15 days, after the expiration of the 60 day period prescribed therein for filing the record. In that situation, a motion to affirm on certificate having been seasonably filed, the right of plaintiffs in error to have such motion granted was absolute. Jarrell v. Farmers Merchants State Bond Bank of Poth,
No opinion was written by the Court of Civil Appeals, and we are therefore not advised upon what ground the motion to affirm on certificate was overruled. It may have acted upon the theory that plaintiffs in error sought inconsistent remedies; that by seeking and procuring an order striking the transcript and statement of facts they waived their right to an affirmance.
In the case of Texas Pacific Ry. Co. v. Phillips,
The judgments of the Court of Civil Appeals dismissing the appeal and overruling the motion to affirm on certificate are reversed and the cause is remanded thereto with instructions to reinstate the appeal and grant the motion to affirm on certificate.
Opinion adopted by the Supreme Court February 23, 1938.
Rehearing overruled March 23, 1938. *227