Walker v. Cleere, 8134.

• Decision Date: 10 November 1943
• Docket Number: No. 8134.,8134.
• Citation: 174 S.W.2d 956
• Parties: WALKER et al. v. CLEERE et ux.
• Court: Texas Supreme Court

174 S.W.2d 956

WALKER et al. v. CLEERE et ux.

No. 8134.

Supreme Court of Texas.

November 10, 1943.

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

Suit by Clarence A. Cleere and wife against Hall Walker and another to cancel notes and to recover damages, wherein the defendants filed pleas of privilege. The Court of Civil Appeals dismissed defendants' appeal from a judgment overruling the pleas of privilege, 171 S.W.2d 151, and certifies a question to the Supreme Court.

Certified question answered in the negative.

Frank Sparks, of Eastland, for appellants Hall and others.

Woodruff & Holloway, of Brownwood, for appellant Walker.

Callaway & Callaway, of Brownwood, for appellees.

ALEXANDER, Chief Justice.

This is a venue case. It is before this court on certified question from the Court of Civil Appeals at Eastland. See 171 S.W. 2d 151.

The trial court entered an interlocutory order overruling defendants' plea of privilege, from which ruling the defendants attempted to appeal. The record for such appeal was filed in the Court of Civil Appeals sixty-nine days after the date of the entry of the order overruling the plea of privilege, and twenty-eight days after the date of the order overruling the defendants' motion for new trial. No motion was ever filed seeking an extension of time in which to file the record in the appellate court. Appellees filed a motion to dismiss the appeal, but this motion was not filed until more than thirty days after the record had been filed in the Court of Civil Appeals. The Court of Civil Appeals has certified the following question to this court: "In an appeal from an interlocutory order of a district court overruling a plea of privilege, if the record is not filed in the Court of Civil Appeals within twenty days after rendition of such order and no motion in said appellate court is filed within such twenty day period, or within five days thereafter, showing good cause for granting a reasonable extension of time in which to file such record, as provided in Rule 385 (Texas Rules of Civil Procedure), and if the record is subsequently filed, will the right to object to the failure to file same, as provided by said rule, be waived unless the motion urging such objection be filed within thirty days after the filing of the transcript (record) in the Court of Civil Appeals (see Rules 404, 405)?"

Rule 385, regulating appeals from interlocutory orders, reads in part as follows:

"Rule 385. Appeals From Interlocutory Orders

"Appeals from interlocutory orders (when allowed by law) may be taken by

"(a) Filing an appeal or supersedeas bond within twenty days after rendition of the order appealed from, conditioned as required by the rules governing appeals generally; and

"(b) Filing the record in the appellate court within twenty days after rendition of the order appealed from. Provided, that upon the filing of a motion in the appellate court within such twenty-day period, or within five days thereafter, showing good cause therefor, such court may grant a reasonable extension of time in which to file such record or any part thereof."

Rules 404 and 405, referred to in the question certified by the Court of Civil Appeals, read as follows:

"Rule 404. Motions Relating to Informalities in Record

"All motions relating to informalities in the manner of bringing a case into court shall be filed and entered by the clerk on the motion docket within thirty days after the filing of the transcript in the Court of Civil Appeals, otherwise the objection shall be considered as waived, if it can be waived by the party."

"Rule 405. Motions to Dismiss for Want of Jurisdiction

"Motions to dismiss for want of jurisdiction to try the case and for such defects as defeat the jurisdiction in the particular case and cannot be waived shall also be made, filed and docketed at said time; provided, however, if made afterwards they may be entertained by the court upon such terms as the court may deem just and proper."

An order of court sustaining or overruling a plea of privilege prior to the trial of the main case on the merits is an interlocutory order within the meaning of Rule 385, quoted above, and an appeal from such an order is regulated by that rule. Magouirk v. Williams et al., Tex.Com.App., 249 S.W. 185.

There are two reasons why we must hold that the timely filing of the record in the Court of Civil Appeals in an appeal from an interlocutory order is jurisdictional and cannot be waived.

In the first place, it will be noted that Rule 385 makes two requirements for the taking of an appeal from such an order, — towit, (a) filing a bond and (b) filing the record in the appellate court within the time...