Pecos & N. T. R. Co. v. Cox

• Decision Date: 29 November 1911
• Citation: 140 S.W. 1078
• Parties: PECOS & N. T. R. CO. et al. v. COX.
• Court: Texas Supreme Court

Page 1078

140 S.W. 1078

PECOS & N. T. R. CO. et al. v. COX.

Supreme Court of Texas.

November 29, 1911.

Certified Question from Court of Civil Appeals of Fourth Supreme Judicial District.

Action between C. B. Cox and the Pecos & Northern Texas Railroad Company and others. From a judgment for the former, the latter appeals. On certified questions from the Court of Civil Appeals. Questions answered.

Terry, Cavin & Mills and Roscoe Wilson, Madden Trulove & Kimbrough, for appellants. R. R. Hazlewood and Lumpkin, Merrill & Lumpkin, for appellee.

RAMSEY, J.

There is a single question presented for decision in this case. It is presented, with an accompanying statement, in this form in the certificate from the Court of Civil Appeals for the Fourth Supreme Judicial District:

"This cause was tried and judgment rendered for appellee on January 22, 1910, and the motion for new trial was overruled on February 3, 1910. The court adjourned on February 5, 1910, having been in session for more than eight weeks, which was a regular term under the acts of the Legislature of 1909, p. 13. Before adjournment the court granted an extension of time of thirty days from the date of adjournment within which to file a statement of facts and bill of exceptions. Afterwards, in vacation, at some time not shown by the record, the trial judge made an order extending the time for filing statement of facts and bill of exceptions, for an additional period of sixty days, making in all ninety days from the date of adjournment. The order made in vacation was entered, by order of the judge, in the minutes of the district court of Hale county, in which the cause was tried. The reason given for granting the order was that the stenographer was so crowded by work that he could not make out the transcript of the testimony. Other facts are set forth in the opinion of this court, in which a motion to strike out the statement of facts and bills of exceptions was sustained by the court.

"Question.

"Has a district judge the power and authority granted him by the statute of 1909 (page 374, Gen. Laws) to make a further extension of the time for filing bills of exceptions and a statement of facts, during vacation, when the cause was tried at a term of the court lasting for more than eight weeks?

"This question is propounded because of the seeming conflict between the decision of this court and that of the Court of Civil Appeals of the Third Supreme Judicial District of Texas in the case of Wilkerson v. Ward, 135 S. W. 692. We call attention to Hamill v. Samuels, 133 S. W. 419, which induced this court to strike out the bills of exceptions and statement of facts. It is respectfully suggested to the Supreme Court that several cases containing the same question are pending before this court and that a prompt answer to the question would be appreciated."

We think there can be no doubt that the question should be, as it is hereby, answered in the negative, and that a proper construction of the statute compels the holding that a district judge has no power or authority granted to him by the act of 1909 (page 374) to make a further extension of the time for...