Wells v. Driskell

• Decision Date: 20 March 1912
• Citation: 145 S.W. 333
• Parties: WELLS et al. v. DRISKELL.
• Court: Texas Supreme Court

145 S.W. 333

WELLS et al. v. DRISKELL.

Supreme Court of Texas.

March 20, 1912.

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

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.

DIBRELL, J.

The statement and question are as follows:

"The above-entitled cause was appealed from a judgment of the county court of Hamilton county, wherein appellee recovered judgment against appellant for the sum of $153.60. At the last term of this court, to wit, the 8th day of June, 1910, this court of its own motion dismissed the appeal at the cost of appellant (131 S. W. 87), for the reason that the transcript of the record filed herein contained no transcript from the justice's court to the county court, showing a final judgment, which it held to be necessary to give this court jurisdiction of said appeal, since the amount in controversy was below the jurisdiction of the county court. The transcript, however, does contain recitations from the pleadings in the justice's court showing that the amount sued for was $153.60, and it also contains a copy of an appeal bond from the justice's court to the county court; and the judgment of the county court, among other things, recites that there was a judgment in the justice's court. This court, however, held in its opinion that these recitations in the transcript were not sufficient to show a final judgment in the justice's court from which the appeal was prosecuted, but, notwithstanding this, there must be filed, together with the original papers, in the county court a properly authenticated transcript from the justice's court, showing a final judgment in said cause, before the county court could be held to have jurisdiction over said appeal. This ruling was based upon the case of M., K. & T. Ry. Co. v. Bland, 55 Tex. Civ. App. 382, 119 S. W. 911, as well as the cases of Bonner v. Legg & Tyndall, 46 Tex. Civ. App. 176, 101 S. W. 839, and Needham v. Austin Electric Railway Co., 127 S. W. 904, as appears from a copy of the opinion of this court hereto attached. We also desire to say we think our ruling is sustained by the recent case of American Soda Fountain Co. v. Mason, 55 Tex. Civ. App. 532, 119 S. W. 714 et seq.

"Within due course, appellants seasonably filed their motion for rehearing and to reinstate the cause, which motion was carried over to the present term of this court, and by it overruled on the 19th of October, 1910, since which time appellants have filed, on, to wit, November 18, 1910, in this court their motion to recall the mandate and certify the case to the Supreme Court of Texas, on the ground that the decision of this court is in conflict with the opinion of the honorable Court of Civil Appeals of the Fourth District in Patty v. Miller, 5 Tex. Civ. App. 308, 24 S. W. 330, and Shiner v. Shiner, 15 Tex. Civ. App. 667, 40 S. W. 439, and likewise with the decision of the Supreme Court in Heath v. Garrett, 50 Tex. 264. And, in accordance with said request, as well as upon our own motion, since the point raised involves an important question of practice, we have granted said motion, and now here certify for your decision the following question, to wit, Did this court err in dismissing the appeal? In other words, when a case is appealed from a county court to this court, and the amount involved is not within the original jurisdiction of the county court, must the record necessarily contain, as indicated in our opinion, a properly verified transcript from the justice's court to the county court, showing that the case originated in the justice's court, and that the justice's court had rendered a final judgment therein, from which an appeal had been taken, in order to entitle appellants to prosecute their appeal to this court from the adverse decision of the county court? Or is it sufficient that the transcript contains an appeal, together with recitations from the pleadings in the justice's court and in the judgment of the county court, showing that the suit was for an amount over which the county court had appellate jurisdiction?"

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...