Matlock v. Matlock
| Decision Date | 07 May 1952 |
| Docket Number | No. A-3516,A-3516 |
| Citation | 249 S.W.2d 587,151 Tex. 308 |
| Parties | MATLOCK v. MATLOCK. |
| Court | Texas Supreme Court |
Senterfitt, Crump & Jameson, San Saba, Hammett & Lynch, Lampasas, for petitioner.
S. W. Hughes and Newman & McCollum, all of Brady, Woodruff & Holloway, Brownwood, Dan Moody, Austin (in Supreme Court only) for respondent.
The sole question for decision in this case is the right of petitioner to have the judgment of the trial court affirmed on certificate. The transcript and statement of facts were tendered to the Clerk of the Court of Civil Appeals for filing on June 20, 1951, and at the same time appellant (respondent here) filed a motion for leave to file them. The sixty-day period after the overruling of a motion for a new trial in the district court expired on June 18, 1951. Petitioner timely filed in the Court of Civil Appeals a motion to affirm on certificate, and on June 27, 1951, the court overruled that motion and granted the motion of respondent for leave to file the record out of time. Thereafter the Court of Civil Appeals reversed and remanded the case. 245 S.W.2d 536.
Texas Rule of Civil Procedure 386 provides:
'In appeal * * * the appellant shall file the transcript and statement of facts with the clerk of the Court of Civil Appeals within sixty days from the rendition of the final judgment or order overruling motion for new trial * * *; provided, by motion filed before, at, or within a reasonable time, not exceeding fifteen days after the expiration of such sixty day period, showing good cause to have existed within such sixty day period why said transcript and statement of facts could not be so filed, the Court of Civil Appeals may permit the same to be thereafter filed upon such terms as it shall prescribe.'
By Rule 387 petitioner had the absolute right to have the case affirmed on certificate unless respondent made a showing to the court of her right to have the record filed after the expiration of the sixty-day period. Her only showing was in the verified motion of her attorneys filed at the time the record was tendered for filing. The material portions of that motion are copied in the opinion of the Court of Civil Appeals, and will be referred to later in this opinion.
The source of Rule 386 is amended Article 1839, R.S., 1925. Prior to 1931 the time allowed under that Article for filing the transcript was ninety days from the perfection of the appeal, with the provision that 'for good cause' the Court of Civil Appeals might permit it to be filed at a later date. The law in effect prior to 1931 relating to affirmance on certificate provided that within fifteen days after such affirmance the court might permit the transcript to be filed upon a showing of 'good cause why the transcript was not filed' within the ninety-day period. R.S.1925, Arts. 1841-42. Such was the status of the law when the 42nd Legislature convened in 1931. That Legislature, in Chapter 66, Gen.Laws, Reg.Sess., made some important changes in thta law by an amendment to Article 1839. By that amendment the date from which to reckon the time within which the transcript should be filed was changed from the date of the perfection of the appeal to the date of 'the final Judgment or Order overruling motion for new trial,' and the time for filing was reduced from ninety days to sixty days. The amendment provided that 'for good cause shown before the expiration of such sixty day period' the court should permit the transcript to be filed thereafter. That amendment repealed the provisions of Articles 1841-42, R.S., 1925, which allowed the transcript to be filed for good cause on motion made within fifteen days after affirmance on certificate. Red v. Bounds, 122 Tex. 614, 63 S.W.2d 544. Under that amendment the right to an affirmance on certificate became absolute at the end of the sixty-day period, provided no motion for extension of time for good cause had been filed within that period. Even had a situation developed just prior to the end of that period which made it impossible for an appellant to file a transcript in time, courts of civil appeals were powerless to extend the time, absent a motion filed within the sixty-day period.
The 43rd Legislature, in 1933, in Chapter 67, Gen.Laws, Reg.Sess., amended Article 1839 so as to grant appellant some relief from the strictness of the 1931 amendment. The only change material to this decision was a provision that 'by motion filed before, at, or within a reasonable time, not exceeding fifteen days, after the expiration of such sixty day period, showing good cause to have existed within such sixty day period, why said transcript could not be so filed, the Court of Civil Appeals may permit the same to be thereafter filed upon such terms as it shall prescribe.' All prior Acts with respect to 'good cause' contained no limitation or restriction with respect to what might constitute 'good cause,' but that is not true of the 1933 Act. It provided that the appellant must show 'good cause' to have existed during the sixty-day period 'why said transcript could not be so filed'. By that amendment the Legislature relieved the appellant from the strictness of the 1931 amendment to the extent only of allowing him an extension of fifteen days within which to file a motion for additional time, but at the same time it added a restriction by providing that in order to be entitled to file the transcript out of time he must show good cause why he could not file it within the sixty-day period. (All italics ours.) The only other amendment to Article 1839 enacted by the Legislature was the amendment by the 46th Legislature in 1939, Chapter 1, Gen.Laws, Reg.Sess., p. 58 Making the provision for filing the transcript applicable also to the filing of the statement of facts. The requisites of the motion for leave to file the record after the expiration of the sixty-day period were not changed.
When, under authority of the Legislature, this court adopted rules of civil procedure it brought forward in Rule 386 amended Article 1839 without any change material here. It preserved the exact language of the statute as amended in 1933 and 1939, which provided that the motion must show 'good cause * * * why said transcript and statement of facts could not be so filed'. The rule cannot, therefore, be treated as one adopted by the court for its convenience or for the more orderly submission of causes, which the court might feel at liberty to waive for any cause deemed by it to be sufficient. To the contrary, the rule carries forward an unambiguous statute declaring the public policy of the State on a question of importance in the administration of justice. When the Legislature in 1931 materially reduced the time for filing the transcript, it...
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