Patrick v. Pierce

• Citation: 183 S.W. 441
• Decision Date: 08 March 1916
• Docket Number: (No. 2441.)
• Parties: PATRICK v. PIERCE.
• Court: Supreme Court of Texas

183 S.W. 441

PATRICK v. PIERCE.

(No. 2441.)

Supreme Court of Texas.

March 8, 1916.

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

Action between F. Patrick and T. E. Pierce. Heard on certified questions from the Court of Civil Appeals. Questions answered.

Stennis & Wilson, of Weatherford, for plaintiff. Hood & Shadle, of Weatherford, for defendant.

PHILLIPS, C. J.

The suit originated in the Justice Court, and from the judgment rendered in the County Court an appeal was perfected to the Court of Civil Appeals. There, the judgment was reversed and the cause remanded because of the absence of a transcript of the proceedings in the Justice Court, as required by article 2396, Revised Statutes of 1911, this being necessary, in the opinion of the Court of Civil Appeals, to evidence the jurisdiction of the County Court. In the findings of fact of the trial judge it was recited that the suit was filed and tried in the Justice Court and an appeal duly perfected to the County Court.

A motion for rehearing having been filed, also a motion for writ of certiorari, joined in by both appellant and appellee, for the bringing before the court of a certified copy of the Justice Court transcript, the original of which was alleged to be on file in the County Court, the Court of Civil Appeals has certified, among others, the following questions:

1. Is the finding of fact by the trial judge that the suit was filed and tried in the Justice Court and an appeal duly perfected to the County Court, a sufficient showing that the County Court acquired appellate jurisdiction?

2. If the above question be answered in the negative, was it erroneous for the Court of Civil Appeals to consider the appeal without first suggesting to the appellant the absence of any showing that the County Court had acquired appellate jurisdiction of the suit, and according to him an opportunity to correct the record?

In Wells v. Driskell, 105 Tex. 77, 145 S. W. 333, Mr. Justice Dibrell, speaking for the court, recognizes that in cases originating in the Justice Court the established rule of practice is to require that a transcript of its proceedings be embodied in the record in the Court of Civil Appeals to the end that the jurisdiction of the intermediate court and, therefore, of the Court of Civil Appeals may be affirmatively evidenced; and holds that it must be observed except where, because of some unusual condition, it is not possible or practicable for the appellant to obtain such a transcript for the purposes of the record. Nothing is disclosed here which brings the case within the exception. The finding of the trial judge did not, therefore, supply the omission of the Justice Court transcript; and the first question is so answered.

On the second question, in the then state of the rules for the government of the Courts of Civil Appeals, we think the appellant should have been given an opportunity to perfect the record before it was ruled that the court had no jurisdiction of his appeal. Rule 1 (142 S. W. x) reads:

"The clerks of the Courts of Civil Appeals shall receive the transcripts delivered and sent to them, and receipt for the same if required, but they shall not be required to take a transscript out of the postoffice, or an express office, unless the postage or charges thereon be fully paid. Upon receipt of the transcript it shall be the duty of the clerk to examine it in order to ascertain whether or not, in case of an appeal, notice of appeal and a proper appeal bond or affidavit in lieu thereof (where bond is required) have been given; and in case of a writ...