Hawkeye Securities Ins. Co. v. Cashion

• Citation: 293 S.W. 664
• Decision Date: 18 March 1927
• Docket Number: (No. 281.)
• Parties: HAWKEYE SECURITIES INS. CO v. CASHION et al.
• Court: Court of Appeals of Texas

Page 664

293 S.W. 664

HAWKEYE SECURITIES INS. CO v. CASHION et al.

(No. 281.)

Court of Civil Appeals of Texas. Eastland.

March 18, 1927.

Rehearing Denied April 15, 1927.

Error from District Court, Eastland County; George L. Davenport, Judge.

Action by Mrs. Velma Cashion and husband against the Hawkeye Securities Insurance

Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

Senter & Strong, of Dallas, for plaintiff in error.

Barker & Orn, of Cisco, for defendants in error.

HICKMAN, J.

This case comes to this court for the second time. The opinion upon the first appeal will be found in Hawkeye Securities Insurance Co. v. Cashion et al., 278 S. W. 298. The only facts necessary to be recited preliminarily for an understanding of the issues are that defendants in error recovered judgment against plaintiff in error for $1,250 and interest on a policy of fire insurance issued by plaintiff in error in favor of defendants in error, covering certain household goods and wearing apparel alleged to have been destroyed and damaged by fire on December 24, 1923. The recovery was for the full face value of the policy.

We are met at the threshold of this case by a motion filed by defendants in error to affirm on certificate. This motion was argued to the court in connection with the submission of the case, and a determination thereof is necessary before considering the assignments of error presented.

The grounds upon which we are asked to affirm the judgment on certificate are as follows: After judgment was rendered by the trial court, notice of appeal was given by the defendant, and in due time proper supersedeas bond on appeal was filed. A transcript of the record upon such appeal was not filed in this court within the time provided by law, but, within the statutory time prescribed therefor, the case was brought here by a writ of error upon a proper supersedeas bond in error, and transcript under this proceeding was duly and seasonably filed. Upon this state of facts, it is insisted that it is the duty of this court to affirm the case on certificate on account of the failure of plaintiff in error to file the transcript of record under its appeal. It is a well-settled rule that a party, dissatisfied with a judgment of a lower court, may perfect his appeal, abandon same, and then sue out a writ of error within the statutory time provided therefor. Eppstein & Co. v. Holmes, 64 Tex. 560; Hall v. La Salle County (Tex. Civ. App.) 46 S. W. 863.

This rule, however, is subject to the limitation that a party cannot resort to both methods of appeal for delay only. Perez v. Garza, 52 Tex. 571; Knox v. Earbee (Tex. Civ. App.) 31 S. W. 531.

The rule is subject to the further limitation that the privilege of abandoning an appeal and suing out a writ of error is subordinate to the superior right of the appellee to have the judgment affirmed on certificate. Welch et al. v. Weiss, 99 Tex. 356, 90 S. W. 160; Scottish Union & National Insurance Co. v. Clancey, 91 Tex. 467, 44 S. W. 482; Western Union Telegraph Co. v. Wofford, 32 Tex. Civ. App. 427, 72 S. W. 620, 74 S. W. 943.

In the case of Welch et al. v. Weiss, supra, it was held that, where an appellee was entitled to an affirmance on certificate under the statute, his right could not be defeated by the suing out of a writ of error, even though the failure to file the transcript in time was not for delay, and even though the writ of error was perfected before the application was made for affirmance on certificate.

In the instant case, the appeal and writ of error were both returnable to the present term of this court. The question of resorting to the writ of error for delay does not therefore arise. The conclusion must necessarily be drawn that the motion to affirm on certificate must be granted, unless the record discloses facts constituting good cause why the transcript was not filed. The only ground provided by the statute (article 1841, R. S. 1925) for affirmance on certificate is the failure to file a transcript of record as directed by law. The right of affirmance by certificate is both created and measured by this article. By it, it becomes the duty of this court, when motion is filed in the proper case, to affirm on certificate, "unless good cause can be shown why such transcript was not so filed."

In resisting the motion to affirm, the plaintiff in error set forth at much length all the facts, circumstances, and conditions which made it impossible for it to file the transcript upon appeal within the time provided by law. We have carefully considered these facts, and, in our judgment, they are sufficient to exonerate the plaintiff in error of any negligence or lack of diligence in perfecting its record. On the ground that good cause was shown this court why the transcript was not filed within the time provided by law, the motion to affirm on certificate is overruled.

A consideration of the case upon its merits has been rendered very difficult, due to the fact that the plaintiff in error has ignored the rules prescribed by the Supreme Court governing the preparation and filing of briefs in the Courts of Civil Appeals. The brief has no index; the pages are not numbered; the propositions of law upon which the appeal is predicated are not grouped; there is not a single citation of authority contained in the brief; and the assignments which are briefed are set forth under the old briefing rules. It would have greatly facilitated the work of this court if the able counsel representing the plaintiff in error had...