Wells v. Driskell
Decision Date | 20 March 1912 |
Citation | 145 S.W. 333 |
Parties | WELLS et al. v. DRISKELL. |
Court | Texas Supreme Court |
Action by E. C. Driskell against F. H. Wells and others. On certified questions from the Court of Civil Appeals after appeal to it by defendants from an adverse judgment. Questions answered as stated.
H. E. Trippet and Langford & Chesley, for appellants. W. M. Whitmire and Eidson & Eidson, for appellee.
The statement and question are as follows:
It seems to be well settled by the decisions of the Courts of Civil Appeals, as a matter of practice, that the transcripts in those courts must contain the transcript from the justice's court to the county or district court, in order to show affirmatively the jurisdiction of such appellate courts. Whatever view this court might entertain upon this question, if it were an open one, we would not be inclined to disturb the established practice as above indicated by the ruling of those courts. In the following cases, it has been held that the embodiment of such records in the transcript filed in the Courts of Civil Appeals is necessary to show the jurisdiction of the appellate courts: Osborne & Co. v. Ayers, 32 S. W. 73; Texas & P. Ry. Co. v. Jordan, 83 S. W. 1105; Albritton v. First National Bank of Mexia, 85 S. W. 1008; Bonner v. Legg & Tyndall, 46 Tex. Civ. App. 176, 101 S. W. 839; Needham v. Austin Electric Ry. Co., 127 S. W. 904; and Penn Fire Ins. Co. v. Pounders, 84 S. W. 666.
We are unable to discover any conflict upon this question between the decisions of this court and the Court of Civil Appeals, or between the holdings of those courts themselves. In the case of Patty v. Miller, 5 Tex. Civ. App. 308, 24 S. W. 330, to which reference has been made, a transcript was filed in the district court after the lapse of two terms, and the appeal was for that reason dismissed in the lower court. The Court of Civil Appeals of the Fourth District very properly reversed that judgment, but not upon the ground, as we interpret the decision, that it was not necessary to file a transcript of the proceedings had in the justice's court. The decision was based upon the fact that for a time the justice refused to make and file a transcript of the proceedings because his costs had not been paid; and his failure to comply with the law was not brought about by any failure of duty on the part of the appellant in that case. The decision is based upon the theory, which we think correct, that the purpose of the transcript from the justice's court is to show, not to give, jurisdiction to the appellate court. In the particular case decided by that court, the transcript was, as a matter of fact, made and filed in the district court, the cause was dismissed, it seems, for want of jurisdiction, afterward reinstated, and subsequently, upon motion of appellee, dismissed, for the reason that two terms of the district court had been suffered to pass before the transcript was filed. It appears from the record the evidence of the court's jurisdiction was not wanting; and hence the purpose of requiring the filing of a proper...
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Indian Territory Illuminating Oil Co. v. Rainwater, 1988.
...to that rule but they are not shown to be applicable here. 3 Tex.Jur. 400; Patrick v. Pierce, 107 Tex. 620, 183 S.W. 441; Wells v. Driskill, 105 Tex. 77, 145 S.W. 333. In Perry v. Greer, 110 Tex. 549, 221 S.W. 931, our Supreme Court, in an opinion by Chief Justice Phillips, said that when t......
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