Rigdon v. Panhandle Pub. Co.
| Decision Date | 28 August 1950 |
| Citation | 233 S.W.2d 230 |
| Parties | RIGDON v. PANHANDLE PUB. CO. |
| Court | Texas Court of Appeals |
Leigh Fischer, Berger, Mullinax, Wells & Ball, Dallas, for appellant.
Sanders, Scott, Saunders & Smith, Amarillo, for appellee.
We have before us a second motion for an extension of time for filing the transcript and statement of facts in this court in this cause, the same having been filed on August 11, 1950, by counsel for Joe W. Rigdon, plaintiff in the trial court and appellant here. Appellant filed his first motion for an extension of time on July 15, 1950. The same was not contested by appellee and was granted by this court in due course on July 31, 1950, allowing 25 days additional time for filing the transcript and statement of facts in this cause. thus extending the time according to the record to August 11, 1950.
Appellant's second motion is verified of date August 10, 1950, but it has no exhibits attached or other proof offered in support of his motion seeking further time for filing the record in this cause. He states in both his first and second motions that the trial court overruled his motion for a new trial on May 18, 1950, and that the said court thereafter on July 6, 1950, granted him ten days additional time for filing the statement of facts. He further states in the said second motion that the clerk of the trial court has been unable to prepare the transcript for filing in this court within the period of time as extended by this court and that appellee's counsel had failed and refused to approve the statement of facts as it was prepared, for which reasons appellant seeks thirty days or more additional time for filing the transcript and statement of facts in this cause.
After being duly served with notice of appellant's second motion for an extension of time for filing the record in this cause, appellee on August 21, 1950, filed a reply to the same resisting appellant's second motion. Appellee's reply is verified and has attached thereto and made a part thereof as exhibits photostats of a part of the record and copies of letters supporting its contest made. Among the exhibits presented by appellee is a photostat of the cover of the transcript prepared in this cause by the clerk of the trial court, Mrs. Wallace Kelley, and a photostat of her certificate to the transcript, both of which bear her signature and they show that the transcript in this cause had been prepared on July 18, 1950, as previously requested by appellant's counsel and the former mentioned photostat shows that the said transcript had been delivered to appellant's counsel on July 18, 1950. Appellee further contends that the statement of facts presented to its attorneys for approval was not a complete statement of facts and did not reflect the record in full and exhibits are attached to its pleading in support of its contention.
On August 24, 1950, subsequent to the filing of appellant's second motion and the contest thereof filed by appellee, appellant himself tendered to the clerk of this court for filing the transcript in this cause consisting of 243 pages, together with the statement of facts in three volumes and certain original exhibits, which were included by supplemental request. The cover on the said original transcript and the trial court clerk's certificate contained in the transcript both bear the said clerk's signature, Mrs. Wallace Kelley. They reveal that the transcript, containing all of the proceedings had in the trial court, was completed and delivered to appellant's counsel on July 18, 1950, thus supporting the photostats to that effect furnished by appellee.
Jurisdiction is conferred on this court in such a case by filing the transcript here in accordance with the provisions of the rules. Darden v. Davies, Tex.Civ.App., 217 S.W.2d 892; Walker v. Cleere, Tex.Civ.App., 171 S.W.2d 151; certified question answered 141 Tex. 550, 174 S.W.2d 956. It clearly appears from the record that appellant's counsel received the completed transcript in due form from the clerk of the trial court long before the period of time as extended by this court had expired but appellant has not made any attempt to show why such transcript was received in due time for filing, yet not tendered for filing until after the period of...
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