Glidden Co. v. Aetna Cas. & Sur. Co.

• Decision Date: 06 June 1956
• Docket Number: No. A-5632,A-5632
• Citation: 291 S.W.2d 315,155 Tex. 591
• Court: Texas Supreme Court
• Parties: The GLIDDEN COMPANY et al., Petitioners, v. The AETNA CASUALTY and SURETY COMPANY, Respondent.

Page 315

291 S.W.2d 315

155 Tex. 591

The GLIDDEN COMPANY et al., Petitioners, v. The AETNA CASUALTY and SURETY COMPANY, Respondent.

No. A-5632.

Supreme Court of Texas.

June 6, 1956.

Spafford, Spafford, Freedman, Hamlin, Gay & Russell, Dallas, for glidden co.

Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for Crowe-Gulde Cement Co.

McMahon, Springer, Smart & Walter, Abilene R. T. Bailey and Wm. L. Richards, Dallas, for respondent.

WALKER, Justice.

Petitioners, who supplied materials to the contractor for the construction of a housing project for the Housing Authority of the City of Borger, recovered judgment in the trial court against respondent, the surety on the contractor's performance and payment bond, for the value of all materials furnished by them. The Court of Civil Appeals concluded that the rights of the parties are governed by the provisions of Art. 5160, Tex.Rev.Civ.Stat.1925, as amended, Vernon's Ann.Civ.St. art. 5160, and reformed the judgment to allow petitioners to recover only for materials which were furnished within ninety days of the filing of their verified claims with the county clerk. 283 S.W.2d 440. Since respondent's appeal bond was not filed within the period of thirty days prescribed by Rule 356, Texas Rules of Civil Procedure, it is our opinion that the Court of Civil Appeals should have sustained petitioners' motion to dismiss the appeal.

The judgment of the trial court was rendered and entered on September 29th, and no motion for new trial was filed. Local counsel for respondent received the appeal bond by registered mail during the morning of October 29th, which was the last day for filing same. About four o'clock that afternoon, Dallas counsel telephoned to inquire whether the bond had been received and filed. Upon termination of that conversation, the local attorney telephoned the district clerk's office, but received no answer. He then drove to the courthouse, which was some fifteen blocks from his office, for the purpose of filing the bond. Although he reached the clerk's office before five o'clock, which was the usual closing time, the office was locked and neither the clerk nor any of the deputies could be found in the courthouse.

Counsel attempted to reach the clerk by telephone at the latter's residence some five times during the late afternoon and evening, but no one answered. He did not try to contact the district judge, who was recovering from an operation and was not in condition to transact business. Nor was any effort made to reach one of the several deputy clerks, because counsel did not know how to locate them.

Shortly after eight o'clock the following morning, counsel returned to the clerk's office and delivered the bond to a deputy clerk, who stamped the same with a file mark showing October 30th as the date of filing. Counsel explained that he had attempted to file the bond before the usual closing time the previous afternoon and had found the office locked. He was informed that the clerk had left town the day before and had instructed the deputies to close early if they desired, and that they had closed the office and gone home a few minutes after four o'clock. Counsel then suggested that under the circumstances the bond should be filed as of October 29th, and the file mark which had been stamped on the bond was thereupon changed in ink, under direction of the clerk, to show that date.

Petitioners filed motions in the trial court to correct the record with respect to the date of filing of the appeal bond, and after a hearing an order was entered by that court finding that while the bond shows a filing date of October 29th, the same was in fact delivered to the clerk the following day. Petitioners then filed in the Court of Civil Appeals motions to dismiss the appeal, which were overruled without a written opinion. In response to requests for findings of fact with reference to the filing of the bond, the appellate court simply found that the facts set forth in an affidavit of the local attorney filed in that court are true. The essential facts stated in such affidavit are set out above.

Respondent argues that the Court of Civil Appeals determined that it had jurisdiction of the appeal, and that such ruling is final and cannot be questioned in this Court. Courts of Civil Appeals undoubtedly have the power, upon affidavit or otherwise, to ascertain such facts as may be necessary to the proper exercise of their jurisdiction. Art. 1822, Tex.Rev.Civ.Stat.1925. Whether an appeal bond was filed on or before thirty days after the date of rendition of judgment or order overruling the motion for...