This action was taken upon the erroneous assumption that the matter should be governed by the provisions of article 1839, as amended by Acts 43d Leg., c. 67 (Vernon's Ann.Civ.St. art. 1839), requiring an appellant to file the transcript in this court within sixty days from the overruling of motion for new trial, or else file a motion, within fifteen days from the expiration of said sixty-day period, for an extension thereof. Upon further consideration a majority of the court have reached the firm conclusion that article 1839 has no application under the facts presented here, but that the situation must be governed by rule 1 for the Courts of Civil Appeals, as follows: "1. The clerks of the Courts of Civil Appeals shall receive the transcripts * * *. Upon receipt of the transcript it shall be the duty of the clerk to examine it in order to ascertain whether or not, * * * notice of appeal and a proper appeal bond * * * have been given; * * * If it seems to him that the appeal has not been duly perfected he shall note on the transcript the day of its reception and refer the matter to the court. If, upon such reference, the court shall be of opinion that the transcript shows that the appeal * * * has been duly perfected, they shall order the transcript to be filed as of the date of its reception. If not, they shall cause notice of the defect to issue to the attorneys of record of the appellant * * *, to the end that they may take steps to amend the record, if it can be done, for doing which a reasonable time shall be allowed. If the transcript does not show the jurisdiction of the court and if after notice it be not amended, the case shall be dismissed."
Upon timely motion this court granted appellant until March 26, 1934, in which to file the record in this court, and in pursuance of that extension appellant, on said March 26, tendered the transcript to the clerk of this court for filing. The clerk inspected the transcript, as provided in rule 1, and discovered that the indorsement on the appeal bond copied in the record showed the bond to have been filed in the trial court on February 23, which was more than twenty days after adjournment of the court for the term at which the judgment sought to be appealed from was rendered, and therefore too late to give this court jurisdiction. The clerk thereupon refused to file the transcript because of the apparent tardy filing of the appeal bond, and, noting the date of its receipt thereon, gave notice of the refusal to file, and the reason therefor, to the attorneys for appellant, all as provided in rule 1.
In response to such notice, counsel for appellant set up an inquiry in the trial court, at which it was disclosed that said appeal bond had in truth and in fact been timely filed in the court below on February 17, but that subsequent to such filing the file mark on the bond and in the record thereof in the transcript had been changed from February 17, to February 23, without the knowledge or acquiescence and through no fault of appellant or its counsel, whereby it was made to appear that the bond was filed too late to effectuate the appeal; whereas, in fact it had been timely filed and this court's jurisdiction had attached. Upon this showing the trial court ordered the clerk below to restore the original and true file mark on the bond to show the original and true date thereof, to wit, February 17. This was the proper procedure. 3 Tex.Jur. § 543; Boggess v. Harris, 90 Tex. 476, 39 S.W. 565; Johnston *Page 700 v. Arrendale (Tex.Civ.App.) 71 S.W. 44 (Writ Ref.).
Appellant now tenders a supplemental transcript embracing said order, together with motion for certiorari to perfect the record by including said supplemental transcript therein, and a prayer that the transcript, so supplemented, be filed as of the date of its original tender herein, to wit, March 26. The motion for certiorari will be granted, but as the supplemental transcript showing the correction sought has been tendered in this court, the clerk is ordered to file same in lieu of the writ of certiorari, which need not issue. And the clerk of this court is now directed to file the original transcript as of March 26, 1934, the date tendered for that purpose. Rule 1, supra; 3 Tex.Jur. §§ 544, 548; Patrick v. Pierce, 107 Tex. 620, 183 S.W. 441; Wells v. Driskell,105 Tex. 81, 145 S.W. 333; Powell v. Hill (Tex.Civ.App.) 152 S.W. 181.
All costs of this proceeding for certiorari, including costs of supplemental transcript, will be taxed against appellees.
Also, upon further consideration a majority of this court have concluded that the mandamus applied for by relator, to require the clerk of the district court of Karnes county to file the supersedeas bond tendered to said clerk by relator on February 12, 1934, should be granted by virtue of the statutes (article 4969 et seq.) and the interpretation thereof by our courts. Scribner's Sons v. Marrs, 114 Tex. 11, 262 S.W. 722; McKenzie Const. Co. v. City of San Antonio (Tex.Civ.App.) 50 S.W.2d 349 (Writ Ref.); Ex parte Cook, 62 Tex.Cr.R. 22, 136 S.W. 67; Security Union Ins. Co. v. Gullett (Tex.Civ.App.) 36 S.W.2d 1085; Romine v. Howard (Tex.Civ.App.) 93 S.W. 690; Clopton v. Goodbar (Tex.Civ.App.) 55 S.W. 972.
Accordingly, all orders of this court heretofore entered in the proceeding for said mandamus will be set aside and relator's application for mandamus will be reinstated and granted, and the clerk of this court is directed to issue said mandamus, commanding respondent, Maud Pyle, clerk of the district court of Karnes county, to file said supersedeas bond as of February 12, 1934. All costs of this proceeding for mandamus will be taxed against appellees in this cause.