Ziegler v. Hunt

• Decision Date: 10 February 1926
• Docket Number: (No. 591-4416.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 280 S.W. 546
• Parties: ZIEGLER et al. v. HUNT.
• Court: Texas Supreme Court

Page 546

280 S.W. 546

ZIEGLER et al. v. HUNT.

(No. 591-4416.)^*

Commission of Appeals of Texas, Section B.

February 10, 1926.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Action by William Ziegler and others against Jesse R. Hunt. Judgment for plaintiffs was reversed and judgment rendered by the Court of Civil Appeals (271 S. W. 936), and plaintiffs bring error. Affirmed.

McCollum Burnett, Perry J. Lewis, H. C. Carter, and Randolph Carter, all of San Antonio, for plaintiffs in error.

Birkhead, Lang & Beckmann, Barrett & Barrett, and Hitzfield & Lynch, all of San Antonio, for defendant in error.

POWELL, P. J.

This case is stated fully by the Court of Civil Appeals in its opinion, reported in 271 S. W. 936. We think that court has written a very able opinion on the merits of this case and correctly decided those issues. We do not think we could improve the opinion in these respects, so we content ourselves by referring to it as our answer to many of the contentions contained in the application for writ of error. We think any other conclusion would do the greatest violence to thoroughly established rules of law and justice.

The writ was granted to settle "an apparent conflict" between this decision and those of other courts upon a practice question. In this case, the statement of facts was filed in the district court three days after the expiration of 90 days after the appeal was perfected. When it was presented to counsel for plaintiffs in the district court, they refused to approve it; but the district judge did so. He signed it and ordered it filed as a part of the record in this cause. The clerk then put his file marks on the statement of facts.

After the statement of facts was filed in the district court on October 11, 1924, counsel for Hunt asked permission of the Court of Civil Appeals for the filing thereof, as well as the transcript, in that court. Both instruments were presented in that court at the same time, but long after the expiration of 90 days subsequent to the perfecting of the appeal. But, for what the Court of Civil Appeals deemed a good cause shown, it permitted the filing of both papers. They were filed contemporaneously by the clerk of that court on November 26, 1924. Counsel for appellees in that court made a motion to strike out the statement of facts. This motion was overruled by that court without a written opinion. It is now contended that this action is in conflict with other decisions as aforesaid. Properly interpreted, we do not believe there really is any conflict, although certain language in some of the decisions of the Courts of Civil Appeals might be construed as being in conflict with this decision. This precise situation has not been before the courts heretofore.

The exact contention is that there is no authority for either the district court or the Court of Civil Appeals to permit the filing of a statement of facts later than 90 days after the perfecting of an appeal. In the first place, the statement of facts must be filed in the trial court. Otherwise, it will not be considered by the Court of Civil Appeals. This is well settled. The statute requires its filing there first. Under the law, when must it be filed in the trial court? As stated by Chief Justice Brown in the case of Heflin v. Railway Co., 155 S. W. 188, 106 Tex. 23, the only absolute limitation upon its filing by the district court is that it "shall not be so extended so as to delay the filing of the statement of facts, together with the transcript of record, in the appellate court within the time prescribed by law." Article 2073, Revised Civil Statutes of 1911.

Article 1608, Revised Statutes of 1911, provides when a transcript may be filed in the Court of Civil Appeals. That article reads:

"In any appeal or writ of error as provided for in this chapter, the appellant or plaintiff in error shall file the transcript with the clerk of the Courts of Civil Appeals within ninety days from the performance of the appeal or service of the writ of error; provided, that, for good cause, the court may permit the transcript to be thereafter filed upon such terms as it may prescribe."

In view of this last-quoted article of the Statutes, counsel for plaintiffs in error here admit that the Court of Civil Appeals had a right to authorize the filing of the transcript as it did. But they say this is not true with reference to the statement of facts. This contention is made despite the fact that the filing of the transcript in the Court of Civil Appeals was not delayed by the contemporaneous filing there of the statement of facts.

So, it would seem from article 2073, read in connection with article 1608, that the district court can file a statement of facts just so long as such filing does not delay the filing of the transcript in the Court of Civil Appeals within the time prescribed by law. That time, under the statute, is indefinite and elastic. Generally, it must be within 90 days after the perfecting of an appeal. But it may be subsequent to that time. All of those conditions are prescribed in the same statute. But if there could be any doubt as to the authority of the district judge in this case, under article 2073, to file this statement of facts as he did, then article 2074, Revised Statutes of 1911, shows clearly it was the intention of our lawmakers that he should have this latitude. That article reads as follows:

"Whenever a statement of facts shall have been filed after the time prescribed by law, and the party tendering or filing the same shall show to the satisfaction of the Courts of Civil Appeals that he has used due diligence to obtain the approval and signature of the judge thereto, and to file the same within the time in this chapter prescribed for filing the same, and that his failure to file the same within said time is not due to the fault or laches of said party or his attorney, and that such failure was the result of causes beyond his control, ...