Brown v. Hooks

• Decision Date: 02 November 1927
• Docket Number: (No. 995-4862.)
• Citation: 299 S.W. 228
• Parties: BROWN v. HOOKS.
• Court: Texas Supreme Court

299 S.W. 228

BROWN v. HOOKS.

(No. 995-4862.)

Commission of Appeals of Texas, Section A.

November 2, 1927.

Certified Questions from Court of Civil Appeals of First Supreme Judicial District.

Action by Cliff P. Brown against Mrs. A. D. Hooks. Judgment for defendant, and, on plaintiff's appeal, defendant files a motion for affirmance on the certificate under Rev. St. 1925, art. 1841. On questions certified from the Court of Civil Appeals. Questions answered.

Heidingsfelder, Kahn & Branch and Samuel Schwartz, all of Houston, for appellant.

Woods, John & Cox, of Houston, for appellee.

HARVEY, P. J.

Certified questions from the Court of Civil Appeals for the First district. The material parts of the certificate are as follows:

"In a suit brought by appellant against appellee in a district court of Harris county, judgment was rendered in favor of appellee that appellant take nothing by his suit, and that appellee recover of appellant all costs of the suit.

"This judgment was rendered on July 6, 1926. Appellant excepted to the judgment, gave notice of appeal to this court, and perfected his appeal by filing an appeal bond on July 27, 1926.

"No transcript in the case having been filed, the appellee, on November 5, 1926, filed a motion for affirmance on certificate under the provisions of article 1841, Revised Statutes 1925. Accompanying the motion there is a certificate of the clerk of the trial court showing `the time when and how the appeal was perfected.' This certificate contains a copy of the judgment and of the appeal bond filed by appellant, and shows the dates on which the term of the trial court began and ended and the dates on which the judgment was rendered and the appeal bond filed. The certificate does not affirmatively show that the suit was one of which the trial court had jurisdiction. * * *

"At a former day of this term, following the case of Dandridge v. Masterson, 105 Tex. 511, 152 S. W. 166, we overruled appellant's exceptions to the certificate and granted the motion to affirm. A motion for rehearing is now pending before us, and, in view of a conflict between our holding, refusing to dismiss the certificate, and the holding by other Courts of Civil Appeals in the cases of Bird v. Lester, 163 S. W. 658, and Frazier v. Coombs, 251 S. W. 820, we respectfully certify for your decision the following questions:

"(1) Does the jurisdiction of this court to grant a motion to affirm on certificate depend upon an affirmative showing by the certificate that the trial court had jurisdiction of the case?

"(2) Is rule 11a for the Courts of Civil Appeals, in so far as it adds to the provisions of article 1841, Revised Statutes, prescribing what shall be shown in the certificate accompanying a motion to affirm for failure to perfect an appeal, a valid exercise by the Supreme Court of the authority given that court by the statute to promulgate rules for the Courts of Civil Appeals?"

The provisions of article 1841 of the Revised Civil Statutes, so far as relevant, read as follows:

"If the appellant or plaintiff in error shall fail to file a transcript of the record, as directed in this chapter, then the appellee or defendant in error may file with the clerk of said court a certificate of the clerk of the district or county court in which such appeal or writ of error may have been taken, attested by the seal of his court, stating the time when and how such appeal was perfected or such citation was served; whereupon the Court of Civil Appeals shall affirm the judgment of the court below, unless good cause can be shown why such transcript was not so filed."

That jurisdiction in a proceeding under this statute does not depend upon a showing of the trial court's jurisdiction in the case is definitely settled by the decision in the case of Dandridge v. Masterson, 105 Tex. 513, 152 S. W. 166....