Smith v. City Nat. Bank.

• Decision Date: 03 November 1910
• Citation: 132 S.W. 527
• Parties: SMITH et al. v. CITY NAT. BANK OF WICHITA FALLS.
• Court: Texas Court of Appeals

Page 527

132 S.W. 527

SMITH et al. v. CITY NAT. BANK OF WICHITA FALLS.

Court of Civil Appeals of Texas.

November 3, 1910.

On motion by the City National Bank of Wichita Falls to affirm on certificate a judgment rendered in its favor against Charles Givens, and denying the City National Bank of Decatur and C. H. Smith any recovery in that case, which motion was opposed by C. H. Smith and the City National Bank of Decatur. Motion dismissed.

C. C. Huff, A. A. Hughes, and Spoonts, Thompson & Barwise, for the motion. R. E. Carswell and Chas. S. Todd, opposed.

HODGES, J.

This motion to affirm on certificate was filed by the City National Bank of Wichita Falls on the 30th day of June of the present year, and just before the adjournment of this court for the last term. A brief history of the legal proceedings antedating the filing of the motion is thus given in the written argument filed by counsel for the bank: "On August 3, 1909, the district court of Wichita county, Tex., rendered judgment in favor of the appellee, the City National Bank of Wichita Falls, and against one Charles Givens in the sum of $1,476, and this judgment denied to the appellants the City National Bank of Decatur, Tex., and C. H. Smith any recovery in that case. On August 18, 1909, the City National Bank of Decatur, Tex., and Smith filed in said cause and with the district clerk of Wichita county, Tex., an appeal bond with supersedeas conditions in every respect regular and in terms provided by the statute. At a later time, to wit, on or about the 14th day of November, 1909, the transcript of the record taken out in pursuance of that appeal was filed in the Court of Civil Appeals of the Second Supreme Judicial District; that still later, and on or about January 1, 1910, the Court of Civil Appeals of the Second District, acting under the direction of the Supreme Court, transferred that appeal from that court to this. At a later time the appellants sought in this court to file their briefs in that appeal, which effort in that behalf was opposed by the appellee, and the motion of the appellants to file their briefs was denied by this court. Thereupon, and on the 30th of June, 1910, the appellants in that case by proper motion made sought voluntarily to dismiss that appeal, which motion was granted by this court. The appeal was accordingly dismissed, and the transcript under order of the court withdrawn by the appellants. The next move in the matter, chronologically considered, was the filing by the said City National Bank of Wichita Falls, the appellee in the former case, of a motion to affirm the judgment below on certificate. The counsel for the appellee, being uncertain as to just which of the two Courts of Civil Appeals would have jurisdiction to affirm the judgment below on certificate, and to guard against the possibility of error in proceeding in the wrong court, filed a motion to affirm the judgment below both in the Court of Civil Appeals of the Sixth District and in the Court of Appeals of the Second District. About the same time, whether before or after the filing of the motion to affirm on certificate we are not advised, but at least on July 1, 1910, the City National Bank of Decatur and Smith filed in the district court of Wichita county their petition for writ of error for the review of the same judgment that they had formerly sought to review by the appeal. The City National Bank of Wichita Falls filed...