Garrett v. Mercantile Nat. Bank

• Citation: 168 S.W.2d 636
• Decision Date: 17 February 1943
• Docket Number: No. 8075.,8075.
• Parties: GARRETT v. MERCANTILE NAT. BANK AT DALLAS et al.
• Court: Supreme Court of Texas

168 S.W.2d 636

GARRETT v. MERCANTILE NAT. BANK AT DALLAS et al.

No. 8075.

Supreme Court of Texas.

February 17, 1943.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Suit between George W. Garrett and the Mercantile National Bank at Dallas and others. George W. Garrett's appeal from an adverse judgment was dismissed by the Court of Civil Appeals, 170 S.W.2d 238, on ground that the transcript had not been filed within time required by law, and he brings error.

Affirmed.

Dibrell & Snodgrass and J. B. Dibrell, Jr., all of Coleman, for plaintiff in error.

Golden, Croley & Howell, of Dallas, for defendant in error.

ALEXANDER, Chief Justice.

The Court of Civil Appeals dismissed the appeal in this case because it was of the opinion that the transcript had not been filed within the time required by law.

The Legislature in 1939 enacted a statute known as a rule-making power bill (Vernon's Texas Civil Statutes Art. 1731a) which became a law on May 15, 1939. The material portions of this Act are as follows:

"Section 1. In order to confer upon and relinquish to the Supreme Court of the State of Texas full rule-making power in civil judicial proceedings, all laws and parts of laws governing the practice and procedure in civil actions are hereby repealed, such repeal to be effective on and after September 1, 1941. Provided, however, that no substantive law or part thereof is hereby repealed.

"Sec. 2. The Supreme Court is hereby invested with the full rule-making power in the practice and procedure in civil actions. Such rules shall not abridge, enlarge or modify the substantive rights of any litigant. Such rules, after promulgation by the Supreme Court, shall be filed with the Secretary of State and a copy thereof mailed to each elected member of the Legislature on or before December 1st immediately preceding the next Regular Session of the Legislature and shall be reported by the Secretary of State to the Legislature, and, unless disapproved by the Legislature, such rules shall become effective upon September 1, 1941; * * *." Acts of 1939, 46th Leg., Reg.Sess., p. 201.

Pursuant to the above Act, the Supreme Court adopted Rules of Civil Procedure for this State, which became effective September 1, 1941. Among these rules was Rule 386, which requires that in an appeal from the trial court to the Court of Civil Appeals the transcript shall be filed in the Court of Civil Appeals within sixty days after the overruling of the motion for new trial.

The Legislature, at the same session, by an Act which became a law June 7, 1939, amended Revised Statutes Article 2092 so as to read in part as follows:

"Art. 2092. Rules of practice and procedure. The following rules of practice and procedure shall govern and be followed in the Civil District Courts in counties having two (2) or more District Courts with civil jurisdiction only, whose terms continue three (3) months or longer and in all civil litigation in counties having five (5) or more District Courts with either civil or criminal jurisdiction or both civil and criminal jurisdiction:

* * * * *

"31. Appeal Bonds Filed, When. In appeals from such civil District Courts the appeal bond shall be filed within thirty (30) days after the judgment or order appealed from is rendered, if no motion for new trial is filed, and if a motion for new trial is filed, the appeal bond shall be filed within thirty (30) days after the motion for new trial is overruled. In such appeals the statement of facts and bills of exception shall be filed within ninety (90) days after the judgment is rendered if there is no motion for new trial, but if there is a motion for new trial then ninety (90) days after motion for new trial is overruled." Acts of 1939, 46th Leg., Reg.Sess., p. 205.

Section 31 of the above Act permits the filing of the statement of facts and bills of exception within ninety days after the overruling of motion for new trial, and while it does not expressly designate the time within which the transcript must be filed, this Court has held that by implication the above statute permits the filing of the transcript within ninety days after the overruling of the motion for new trial. Hanks v. Texas Employers Ins. Ass'n, 133 Tex. 187, 128 S.W.2d 1. The appeal in this case was from one of the district courts of Dallas County, where there are five or more district courts. The transcript was...