Hunter v. Moore

• Decision Date: 24 June 1933
• Docket Number: No. 1434-6075.,1434-6075.
• Citation: 62 S.W.2d 97
• Parties: HUNTER et al. v. MOORE.
• Court: Texas Supreme Court

62 S.W.2d 97

HUNTER et al. v.MOORE.

No. 1434-6075.

Commission of Appeals of Texas, Section B.

June 24, 1933.

Certified question from Court of Civil Appeals of Second Supreme Judicial District.

Suit by Sam J. Hunter and others against Mrs. Frances Stewart Moore.Judgment for defendant, and plaintiffs appeal.On certified question of the Court of Civil Appeals to the Supreme Court.

Question answered.

Sam J. Hunter, of Fort Worth, for appellants.

Cantey, Hanger & McMahon, of Fort Worth, and Julian B. Mastin, of Dallas, for appellee.

LEDDY, Judge.

This is a certified question by the Honorable Court of Civil Appeals for the Second Supreme Judicial District.The question presented for determination is shown by the following certificate made by that court:

"In this suit appellantSam J. Hunter sued for an attorney's fee claiming to be due him by Mrs. Frances Stewart Moore.The trial court submitted the case upon one special issue, towit:

"`What amount, if any, would be fair and reasonable compensation for the plaintiffs as attorney's fees for services rendered, if any, to the defendant herein?

"`Answer: $2620 plus $640.00, making total of Forty two Hundred and Sixty Dollars, which is compensation already received.'

"Whereupon the court rendered judgment for defendant on April 22, 1930, and the plaintiff has appealed.

"On January 22, 1931, plaintiff's attorneys filed for him an amended motion for new trial, reciting that the original motion for new trial had been filed April 24, 1930, but which original is not in the record before us.After said attorneys had declined to further represent him in the case, and on March 30, 1931, plaintiff in his own proper person filed a second amended motion for a new trial, which was overruled on May 9, 1931, and from which order the appeal is prosecuted.Plaintiff's former attorneys did not appear for him when that action was taken.

"On June 8, 1931, the trial court approved plaintiff's affidavit of inability to pay costs of appeal, filed in lieu of appeal bond.On August 8, 1931, appellant, Sam J. Hunter, moved this court to grant him additional time to finish and file his transcript and statement of facts in this cause.He stated that he has been for nearly a year afflicted with broken ribs which never healed and that he has suffered intense pain and anguish therefrom; that he was absolutely unable to work, owing to physical disability and mental disturbances since the case was tried; that he could not think clearly and satisfactorily.He prayed that as much as two weeks time from August 8, 1931, be allowed him in which to file his transcript and statement of facts.That motion was granted orally in vacation by two of the judges of this court, although the order was not entered on the docket.

"On October 6, 1931, Judge Hunter filed his second motion for extension of time to file transcript and statement of facts, in which he stated that he had not gotten up the transcript and statement of facts in time to have filed in this court within the 90 days, and especially within the 60 days under the new statute, until October 6, 1931.That he received a severe fall about six months before this case was tried in which he suffered two broken ribs and that he had had trouble from this injury ever since.That he had filed a motion heretofore to have the time extended, and that two of the judges of this Court of Civil Appeals extended the time, granting him two weeks in which to get the transcript and statement of facts ready for filing, thus extending the time until August 23, 1931.That the next day he lifted a very heavy beehive and experienced sharp pain in his side so that he was unable to finish the assignments of error, and that he had trouble in getting the second copy of the Q and A statement of facts delivered to him by the district court clerk, and had not secured from the district clerk the transcript and statement of facts until October 5, 1931.

"We are not thoroughly agreed as to whether or not under the facts shown we are authorized to allow Judge Hunter the extension of time prayed for, and by reason of the importance of the question, your answer to which will probably have a material bearing on other cases, we submit to your Honors the following question:

"1.Under the facts shown, is this court authorized to permit the filing of the transcript and statement of facts presented on October 6, 1931?"

Appellants' appeal was perfected on June 8, 1931, by the approval of his affidavit of inability to pay costs of appeal.At the time the appeal was perfected the period in which the transcript was required to be filed in the Court of Civil Appeals was governed by article 1839,R. C. S. 1925, which provides as follows: "In appeal or writ of error, the appellant or plaintiff in error shall file the transcript with the clerk of the Court of Civil Appeals within ninety days from the perfection of the appeal or service of the writ of error; provided, that for good cause, the court may permit the transcript to be thereafter filed upon such terms as it may prescribe."

The 42d Legislature (1931) at its Regular Session, c. 66, § 1(Vernon'sAnn. Civ. St. art. 1839), amended this act so as to read as follows: "In appeal or Writ of Error the appellant or plaintiff in error shall file the transcript with the Clerk of the Court of Civil Appeals within sixty days from the final Judgment or Order overruling motion for new trial, or perfection of the Writ of Error; provided, that for good cause shown before the expiration of such sixty day period,the Court shall permit the transcript to be thereafter filed upon such terms as it shall prescribe."(Italics ours.)The amended act became effective on August 22, 1931.Union Assurance Soc., Ltd., v. Equitable Trust Co.(Tex. Com. App.)58 S.W.(2d) 58....