Welch v. Weiss

Decision Date27 November 1905
Citation90 S.W. 160
PartiesWELCH et al. v. WEISS.
CourtTexas Supreme Court

Action by Margaret E. Welch and others against V. Weiss. From a judgment in favor of defendant, plaintiffs appealed, and after the dismissal thereof sued out a writ of error, which was also dismissed. On certified questions from the Court of Civil Appeals. Affirmed on opinion of the Court of Civil Appeals.

The following is the opinion of the Court of Civil Appeals (Gill, C. J.):

"On motion to dismiss writ of error and motion for rehearing in the matter of our refusal to affirm on certificate.

"On the 12th day of July, 1904, in a suit between the appellants as plaintiffs and appellee as defendant, a judgment was rendered in the trial court that plaintiffs take nothing by their suit and pay the costs. Plaintiffs gave notice of appeal and duly perfected the appeal by filing an appeal bond within the time prescribed by law, but the record was not filed in this court within the 90 days allowed by law for the filing thereof. On the 19th day of November, 1904, plaintiffs, by their attorneys, filed in this court a motion for leave to file the transcript after the 90 days, setting up facts alleged to be sufficient to excuse the delay. This motion was overruled, but no written opinion was filed. As a matter of fact, the failure to file the transcript in time was not due to bad faith or any purpose to delay the enforcement of the judgment or the final termination of the case, but the excuses given therefor were not, however, in our opinion sufficient. That motion was finally disposed of at the last term, and has passed beyond the control of this court. The final order therein was entered December 21, 1904. The plaintiffs thereupon perfected a writ of error to this court and filed the transcript herein on May 6, 1905, and the cause was duly placed upon the docket of this court. On May 19, 1905, the appellee in due form asked for affirmance of the judgment on certificate. Our attention was not called to the fact that the cause was pending here on writ of error, and the prayer for affirmance on certificate was granted. The appellees also filed a motion to dismiss the writ of error, alleging the right to affirmance on certificate and that that right had been accorded them. The appellants promptly filed a motion for rehearing in the matter of the affirmance on certificate, and also resisted the motion to dismiss the writ of error. They prayed that the motion to dismiss and the certificate be consolidated and considered together, and urged that as they were guilty of no bad faith in substituting their writ of error for their forfeited appeal, and as they had prosecuted their writ to the same term of this court to which the appeal was returnable, and before appellees had asked for affirmance on certificate, their right to have the cause determined on writ of error was paramount. We followed this view, and at a later day during the same term granted the motion for rehearing in the matter of affirmance on certificate, refused the requested affirmance, and overruled the motion to dismiss the writ of error. Shortly thereafter, and at a date too near the close of the term for further action in the matter, the court upon their own motion set aside each of the orders last above named, and suggested to counsel that, if they so desired, they might file further argument and authority. The matter was then passed over to this term under the general order of the court made at the adjournment of the term, passing all pending business to the following term.

"Counsel for each side have filed additional argument, and we have given the matter a careful reconsideration. Inasmuch as our views have not heretofore been embodied in writing in this cause, we deem it not amiss to set down briefly the reasons which controlled us in recalling our order of affirmance and refusing to dismiss the writ of error, as well as the views we now hold in regard to the questions involved. The article of the Revised Statutes of 1895 conferring the right to affirmance on certificate and prescribing the method for the exercise of the right is as follows: `Article 1016. In case the appellant or plaintiff in error shall fail to file a transcript of the record as directed in this chapter then it shall be lawful for the appellee or defendant in error to file with the clerk of said court a certificate of the clerk of the district or county court in which any such appeal or writ of error may have been taken * * * stating the time when such appeal was perfected or such citation served; whereupon it shall be the duty of the Court of Civil Appeals to affirm the judgment of the court below unless good cause can be shown why such transcript was not filed. If a copy of the [appeal] bond accompanies such certificate of the clerk, the judgment shall in like manner be affirmed against the sureties on said bond.' It seems to be held or conceded by all the authorities bearing upon the question that the statute was designed to prevent the use of writ of error in such cases for the purpose of delaying the execution of judgments of the lower court. That this would not be possible in a case where the plaintiff had merely failed to recover a judgment in the court below is not only apparent, but in all the authorities to which we have been cited upon the point and in all, except one, to which we have had access, the question arose on appeal from judgments, the execution of which had been arrested by supersedeas bond. In Thompson v. Anderson, 82 Tex. 237...

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22 cases
  • Coultress v. City of San Antonio
    • United States
    • Texas Supreme Court
    • October 27, 1915
    ...107 S. W. 45. See, also, Railway v. Willson, 101 Tex. 269, 106 S. W. 325; Railway v. Conner, 100 Tex. 407, 100 S. W. 367; Welch v. Weiss, 99 Tex. 356, 90 S. W. 160; Elder Dempster & Co. v. Railway, 105 Tex. 628, 154 S. W. 977; Booker-Jones Oil Co. v. Refining Co. (Civ. App.) 132 S. W. Apply......
  • Jarrell v. Farmers' & Merchants' State Bond Bank, 9169.
    • United States
    • Texas Court of Appeals
    • July 28, 1933
    ...us to a contrary conclusion. But we think our situation exactly similar to that of the Galveston court in the case of Welch v. Weiss, 99 Tex. 356, 90 S. W. 160, 162, infra, wherein Judge Gill, for that court, said: "* * * In view of the language of Judge Gaines in summing up the views of th......
  • Chambers v. Grisham
    • United States
    • Texas Court of Appeals
    • April 3, 1913
    ...his motion to affirm prior to the termination of the term of the Court of Civil Appeals to which the appeal is returnable. Welch v. Weis, 99 Tex. 356, 90 S. W. 160; Thompson v. Anderson, 82 Tex. 237, 18 S. W. 153; Insurance Co. v. Clancey, supra; Wandelohr v. Bank, 90 S. W. 180; Railway Co.......
  • Keel & Son v. Gribble-Carter Grain Co.
    • United States
    • Texas Court of Appeals
    • December 29, 1911
    ...this writ of error, subject, however, to the right of the appellees to have the judgment affirmed on certificate. Welch v. Weiss, 40 Tex. Civ. App. 257, 90 S. W. 160; Insurance Co. v. Clancy, 91 Tex. 467, 44 S. W. The question then is: Could the defendants in error, Williams and the grain c......
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