117 S.W.2d 491 | Tex. App. | 1938
We have before us two motions, one to strike the transcript and the other to affirm on certificate.
Appellant, George W. Pittman, who was plaintiff in the trial court, sued the City of Wichita Falls and another, who are appellees herein, in the 89th District Court of Wichita County, Texas, for damages alleged to have been sustained on April 28th, 1937. Judgment was entered on October 18th, 1937, in favor of appellees and against appellant, for costs incurred. Motion for new trial being overruled on the same day the judgment was rendered, the appellant timely perfected his appeal to this court.
The court in which this action was tried falls within a class controlled by Special Practice Act, now Article 2093a, Vernon's Texas Civil Statutes; by that Act, as construed by this court in Traders General Ins. Co. v. Roberts,
The ninety-day period for filing transcript expired on Sunday, January 16th, 1938. The clerk of this court received the transcript from the Express Company in Fort Worth, Texas, on Monday morning, January 17th, 1938, and without having ascertained the time in which to file had expired on the previous day, improvidently filed it, on the day it was received, and notified all parties that he had done so. On March 16th, 1938, appellee filed in this court the two motions above mentioned.
Appellant resists the granting of these motions, upon the grounds they were not filed within thirty days from the date on which the transcript was filed, relying upon Rule 8 for Courts of Civil Appeals. If there was only the motion to affirm on certificate before us, we would have no difficulty, for indeed there is a transcript on file, even though filed without authority of law, as above shown. Obviously, the motion to strike the transcript from the record, here must have first consideration.
There is attached to appellant's reply to these motions an affidavit explaining the delay in filing the transcript, but such would only become relevant here if they had filed an application within the statutory time for leave to file transcript late, showing good cause for not having tendered it sooner. There has been no motion to file after the expiration of statutory time. This doubtless was because, as shown, the record had been filed by the clerk and there would be no occasion for such a motion after it was actually filed and all parties so notified.
It is fundamentally true that the parties to a suit cannot waive jurisdictional matters and thereby confer upon a court authority to act when it would not otherwise have such jurisdiction. Logan v. Gay,
In McCollom Lumber Co. v. Whitfield, supra, the record was not filed in the appellate court within the prescribed time; *493
there, as in this case, the clerk, by an error in calculating the time, filed it after the time had expired, and notified the parties; appellee filed motion to strike the record so filed, and to affirm on certificate. The court said (page 78): "The filing of the record within the time prescribed by law is not jurisdictional, and can be waived by appellee. City of Eagle Lake v. Sugar Refining Co. (Tex.Civ.App.)
Rule 8 for Courts of Civil Appeals reads: "All motions relating to informalities in the manner of bringing a case into court shall be filed and entered by the clerk on the motion docket within thirty days after the filing of the transcript in the Court of Civil Appeals, otherwise the objection shall be considered as waived, if it can be waived by the party."
In Frier v. Krohn, Tex. Civ. App.
In Brown v. Orange County,
Appellee in this case recognizes the authorities we have cited to announce the correct rule as it existed prior to the amendment of Article 1839, as it now appears in Vernon's Texas Civil Statutes, but contends that under the amendment, the timely filing of the transcript becomes jurisdictional, and that it can only be filed out of time upon application made not later than 15 days after the expiration of filing time. We are cited to the case of Klattenhoff v. Schriever, Tex.Sup.,
Appellee also cites as authority for its contention the recent case of Jarrell v. Farmers' Merchants' Bank, 99 S.W.2d1 281; the syllabus, as usual, correctly states the holding there, and distinguishes it from the instant one. The court held: "Where appellants, after giving notice of appeal and filing appeal bond, failed to timely file transcript with Court of Civil Appeals and abandoned such proceedings, perfecting their appeal by writ of error during term to which appeal, if originally perfected, was returnable, without showing good cause for failure to timely file *494
transcript, appellee held entitled to affirmance of judgment on certificate and dismissal of writ of error." In that case the opinion does not indicate that it came from a court operating under any Special Practice Act, but was controlled by Article
Another case cited is Red v. Bounds,
Obviously, the distinction between the case at bar and the one discussed in the case cited, would involve a repetition of what we have already said, and we refrain from doing so.
We therefore hold that the filing of the transcript was not jurisdictional and its filing was a matter which could be waived by appellee; that a failure to file an objection thereto within thirty days, as provided by Rule 8 for Courts of Civil Appeals, constituted a waiver of any objections it had thereto, and with the transcript so filed we cannot affirm the judgment of the trial court upon the certificate attached to a motion for that purpose.
Both the motion to strike the transcript and to affirm on certificate are overruled.