Hunt v. Askew

• Decision Date: 01 January 1876
• Citation: 46 Tex. 247
• Parties: HUNT ET AL. v. ASKEW.
• Court: Texas Supreme Court

46 Tex. 247

HUNT ET AL.

v.ASKEW.

Supreme Court of Texas.

1876.

APPEAL from Smith. Tried below before the Hon. M. H. Bonner.

Jones & Henry, for appellee.

ROBERTS, CHIEF JUSTICE.

The assignment for Smith county commenced the 30th of October, 1876, and continued for two weeks. The appellants failed to file a transcript of the record in this case at the proper time to, wit, the 30th of October, 1876, and have not still filed it. The appellee presented a transcript on the 10th day of November, being within the two weeks, and moved that it may be filed and considered by the court; and having suggested delay, asked an affirmance of the judgment, with damages. Afterwards, on the 14th of the same month, appellee filed an additional motion, asking leave of the court to file the transcript of the record, and, as a reason for not having filed it on the first day of the assignment, submitted a sworn statement of the deputy district clerk of Smith county, that he had prepared the transcript, with the assignment of errors inserted, and delivered it to an attorney representing the appellants, before the first day of the said assignment. Counsel for appellee contend that they had no notice or reason to believe that appellants would not file the transcript of the record so taken out of the office of the clerk by appellants' counsel, and on that ground asked the court to act upon the transcript of the record as if properly filed in time, or, if that cannot be done, that it be acted on by the court as a certificate.

The fifth section of the act of 1850, “concerning proceedings in the Supreme Court,” is amended by the eleventh section of “An act to regulate proceedings in the Supreme Court, approved 3d of April, 1874,” in which several changes are made. The last act, as did the first, requires the appellant to file the transcript of the record on or before the first day of the assignment. One of the changes, by way of addition, is as follows: “ Provided, also, That where a party is unable to file such transcript, in the time limited by this section, from any unavoidable cause, the court shall, upon satisfactory proof thereof, permit such transcript to be filed at a later period.” (Gen. Laws, 1874, pp. 51, 52; Paschal's Dig., art. 1587.) This provision of the statute, though never before enacted in this connection, was substantially in accordance with the practice of this court, founded on the statute, which permitted appellant to file the record after appellee had filed a certificate for the affirmance of the judgment, upon the appellants showing “good cause” why the transcript was not filed in due time, which law is still in force. (Paschal's Dig., arts. 1589, 1590.)

This amendment simply gave express authority to the court to permit the transcript to be filed, upon certain proof by the appellant, when no certificate had been filed by the appellee, which had often been done by the court before its passage.

The statute expressly authorizes appellee to file a certificate, and procure an affirmance of the judgment, in the event that appellant fails to file the transcript, (Paschal's Dig., art. 1589;) but nowhere does it expressly require or authorize the appellee to file the transcript of a record at any time. It is, however, provided by statute, that, when an appeal is taken, “the clerk of the District Court shall immediately make a full and perfect record of all proceedings in such case, and shall, on application of either party, give to such party an attested copy of such record, with a taxation of all costs, and shall indorse on such copy the day on which it was demanded, and the day on which it was delivered, and sign his name as clerk thereto.” The same section proceeds to...