Cox v. Payne, 6080

• Court: Texas Civil Court of Appeals
• Writing for the Court: PER CURIAM
• Citation: Cox v. Payne, 231 S.W.2d 957 (Tex. Ct. App. 1950)
• Decision Date: 15 May 1950
• Docket Number: No. 6080,6080
• Parties: COX v. PAYNE.

Page 957

231 S.W.2d 957

COX v. PAYNE.

No. 6080.

Court of Civil Appeals of Texas, Amarillo.

May 15, 1950.

J. O. Ward, Borger, for relator.

PER CURIAM.

This is an original proceeding in which relator, Luna Cox, files a petition for mandamus seeking to compel respondent, Elmo Payne, clerk of this court, to file a transcript and statement of facts in a cause styled Glenn Cox v. Luna Cox, bearing number 7646, tried originally in the District Court of the 84th Judicial District of Hutchinson County, Texas. As a result of the trial of the case in the said court relator gave notice of appeal and sought to perfect her appeal to this court. Through her counsel she presented the transcript and statement of facts to respondent for filing the same in this court. Upon examining both the transcript and the statement of facts respondent refused to file them on the grounds that they were not timely presented for filing.

The transcript and statement of facts are before us as a part of the record in this hearing since they were tendered by relator together with her petition for mandamus. A portion of the transcript has been copied and attached as exhibits to the said petition for mandamus. The record reveals that the original case was tried in the trial court on January 27, 1950, with both parties and their respective attorneys all present. At the conclusion of the hearing on the said date the trial court announced judgment for Glenn Cox and against Luna Cox, relator here, in the presence of all parties and directed counsel to draw a judgment accordingly. A judgment was accordingly drawn bearing the date of January 27, 1950, showing notice of appeal given by Luna Cox, relator here, and showing the same date of January 27, 1950, again as the date the judgment was signed by the trial court. The date of January 27, 1950, is shown twice on the face of the judgment and no other date is therein shown. The record reveals that on March 13, 1950, Luna Cox filed her appeal bond with the clerk of the trial court; that on March 22, 1950, she, through her counsel, filed a motion in the trial court urging that the trial court amend its judgment by changing the date of January 27, 1950, recited therein to February 17, 1950, the latter date being the date said judgment was signed by the trial court in the said cause tried by it on January 27, 1950. The said motion further stated that unless the trial court so amended its judgment Luna Cox would be deprived of her right to appeal. Her said motion was resisted by Glenn Cox and the said judgment was not amended by the trial court in so far as the record reflects. But the trial court did sign a certificate for the record at the request of relator, which certificate is attached to relator's petition as an exhibit. The trial judge there stated, in substance, that he announced his judgment in open court in the presence of all parties on January 27, 1950, and directed that the judgment be accordingly drawn and that it was so drawn but the same was not signed by him until February 17, 1950. Relator also attached to her petition as an exhibit the trial court's finding of fact and conclusions of law made at her request as a result of the original hearing had on the merits. Such findings likewise recite that the trial court announced its judgment from the bench in open court on January 27, 1950, but the same was not signed by the trial court until February 17, 1950.

Relator contends that the time for filing the appeal bond and the record in the case for appeal must be computed from February 17, 1950, the date the trial court signed the judgment regardless of the recitals therein contained to the contrary. Respondent contends that the date for filing such record must be computed from January 27, 1950, the only date recited in the judgment, which date is twice recited therein, the first recital reflecting the date the judgment was pronounced and rendered from the bench in open court with both parties and attorneys respectively present and the second reflecting the date the judgment was signed by the trial court. No other date is mentioned in the trial court's judgment.

Relator relies on the provisions of Rule 306a, Texas Rules of Civil Procedure, and the case of Isbell v. Brown, Tex.Civ.App., 195 S.W.2d 939, to support her position in the matter. Rule 306a became effective on February 1, 1946, and it was passed for the purpose of clearing up former difficulties in computing the date for...