Kennedy v. Wheeler

• Decision Date: 10 October 1923
• Docket Number: (No. 6745.)
• Citation: 256 S.W. 315
• Parties: KENNEDY v. WHEELER.
• Court: Texas Court of Appeals

256 S.W. 315

KENNEDY v. WHEELER.

(No. 6745.)

Court of Civil Appeals of Texas. Austin.

October 10, 1923.

Appeal from District Court, McLennan County; H. M. Richey, Judge.

Action between Con T. Kennedy and L. O. Wheeler. From the judgment rendered Con T. Kennedy appeals. On motion to dismiss appeal. Motion overruled.

Spell, Naman & Penland, of Waco, for appellant.

Weatherby & Rogers, of Waco, for appellee.

Statement.

BAUGH, J.

This case is appealed from McLennan county. This county was formerly in the Third supreme judicial district of Texas, but, by an Act of the Thirty-Eighth Legislature, at its Regular Session (chapter 74) was placed in the newly created Tenth supreme judicial district. Appeal bond was filed in the court below on April 16, 1923. The act of the Legislature creating the Tenth supreme judicial district became effective June 12, 1923. This act did not provide for a transfer of any cases to the new court. On June 27, 1923, the Supreme Court of Texas issued the following order:

"In order to equalize the dockets of the Courts of Civil Appeals, it is hereby ordered that all causes pending in the Courts of Civil Appeals of this state, not under submission or set for submission, wherein appeals were taken or writs of error were sued out, from any of the following named counties, to wit: McLennan, Coryell, Falls, Robertson, Hamilton, Limestone, Hill, Freestone, Bosque, Brazos, Madison, and Leon, be and the same hereby are transferred from the Courts of Civil Appeals in which the same are respectively pending to the Court of Civil Appeals of the Tenth Supreme Judicial District of Texas, at Waco, for submission to and determination by said Court of Civil Appeals of the Tenth Supreme Judicial District of Texas. It is further ordered that each Court of Civil Appeals shall immediately make the necessary orders for the transfer of said causes as herein directed, and shall cause the clerk to transmit the transcript, and filed papers in each case, together with copies of all orders made in each cause and a copy of this order, so far as it pertains to said cause, to the Court of Civil Appeals for the Tenth Supreme Judicial District at Waco. It is further ordered that the clerk of this court transmit a certified copy of this order to the several clerks of the Court of Civil Appeals for observance.

"I, F. T. Connerly, clerk of the Supreme Court of Texas, hereby certify that the above is a true and correct copy of the order of court entered in the minutes of the Supreme Court of Texas, under date of June 27, 1923.

"Witness my hand and seal of the Supreme Court of Texas, at the city of Austin, this the 27th day of June, 1923.

                  "[Seal]          F. T. Connerly, Clerk
                                  "By H. L. Clamp, Deputy
                

"Filed in Court of Civil Appeals, Third Supreme Judicial District, Austin, Tex., June 28, 1923.

                                   R. H. Connerly, Clerk."
                

On the 10th or 11th of July, in a long distance telephone conversation, the attorney for appellant was advised by a member of this court, and also by the clerk of this court, not to send the record in this case to the clerk of this court, but to file the same with the clerk of the Tenth Court of Civil Appeals. This he did on July 12th. Thereafter, on August 18th, appellant withdrew the record from the Tenth Court of Civil Appeals, and sent same to the clerk of this court, with a request that it be filed as of July 12th, the day on which he had tendered it to the clerk by telephone, and was then advised by the clerk that he would refuse to file it if tendered to him in person. It bears file mark of this court, dated July 12, 1923.

Appellee, by motion, urges that this is the proper court in which to dispose of said appeal; asks that the transcript and statement of facts be stricken out...