I do not think appellee is entitled to the reward of 10 per cent. damages, and respectfully dissent from the decision of the majority of the court as to such matter.
The appellant failed to file the record within the ninety days after the appeal was perfected. After the expiration of such ninety days the appellee filed in this court his motion to affirm on certificate, accompanying the motion with a complete transcript, and the present hearing is on the motion to affirm on certificate.
An award of damage is only made after trial of the appeal on its merits. This is apparent from the language of the statute which authorizes the award of such damages. Article 1627, R.S., provides that the court of Civil Appeals, "on the trial of cases brought from an inferior court," may, in affirming a judgment, "include in their said judgment or decree such damages, not exceeding 10 per cent. on the amount of the original judgment, as the court may deem proper." This article does not specify the grounds on which such damages shall be allowed. This is done by article 1629, which provides that such damages shall be allowed "where the court shall be of opinion that an appeal or writ of error has been taken for delay, and that there was no sufficient cause for taking such appeal." Obviously, it could not be determined whether there was "no sufficient cause for taking the appeal" without an examination of the merits of the case. It has always been held that the request for damages on suggestion of delay requires the court to examine the entire record for errors, whether assigned or not, and a reversal of the case if any errors are found. Riggs v. Horde, 25 Texas Supp. 456, 78 Am.Dec. 584; Tidwell v. Starr (Tex. Civ. App.) 42 S.W. 779; Lundy v. Little. (Tex. Civ. App.) 227 S.W. 538.
A motion to affirm on certificate involves no inquiry into the merits of the case. Revised Statutes, art. 1610; Dandrige v. Masterson,105 Tex. 511, 152 S.W. 166. The motion does not put the case on the trial docket for disposition in its regular order, but it is disposed of summarily after 10 days' notice to the appellant; it presents no case for trial in the Court of Civil Appeals. Taber v. Chapman, 92 Tex. 263,47 S.W. 710. In my opinion an appellee may not, under the guise of a motion to affirm on certificate, file the record out of time, secure an advancement of his case and a trial thereof on the merits, so as to secure an affirmance thereof with 10 per cent. damages. That is what has been done in this case.
While there is no express provision of law authorizing appellee to file a transcript even within the 90-day limit now allowed by law, it has always been held that the appellee may file the record within such time. But it was held in the case of Hunt v. Askew, 46 Tex. 247, 251, that the appellee would not, after the expiration of the time limit for filing the record, be permitted "to file the transcript of the record to be regarded as a record upon which damages on affirmance can be awarded." The court in that case said:
"If the appellee should think the chance of obtaining damages for delay is worth more to him than the risk of losing the cost of his transcript, if appellant should also file a transcript, he has the privilege of filing the transcript on or before the first day of the assignment [that being the time fixed by the statutes in force at that time for the filing of transcripts]; otherwise he must rely upon filing his certificate for a mere affirmance of the judgment, if appellant fails to file the transcript."
This statement excludes the idea that damages might be awarded on hearing of a *Page 328 motion to affirm on certificate. This further quotation from the same case will throw light on any question as to the consideration that should be given to a transcript filed with the motion to affirm on certificate:
"When a complete transcript is filed, in place of and as a substitute for a certificate, by appellee, as has often been done, and it is found to contain those parts of the case which are required to be certified to in a certificate, it may be acted on by this court as such, and for that purpose, may be filed without asking the leave of court."
While the language of the statutes in force at the time of the decision referred to varies in some respects from that of the statute of the present time, the provisions, in so far as they affect the question under discussion, were substantially the same, and the reasons for the conclusions announced in the case apply, in my opinion, to the statutes now in force.
The case of Granberry v. Jackson, 62 Tex. Civ. App. 597, 132 S.W. 508, cited in the majority opinion, does not seem to me to be in point. The record in that case was filed by the appellee within the 90-day period. A case was thus presented for trial on its merits. There was no motion to affirm on certificate filed, and the case was disposed of on its merits, and damages awarded. It is true that the court said in the opinion that "damages for delay could be awarded on a motion to affirm on certificate;" but the statement was unnecessary to a decision of the case, and is dicta. Nor do I think that the other cases cited in support of the proposition stated by the Chief Justice that "the right of appellees to both an affirmance upon certificate and 10 per cent. damages for delay when his motion is accompanied by a complete transcript has been recognized frequently by our courts" sustain the proposition stated. In most of the cases cited the record appears to have been filed within the required time presenting a case regularly for trial. In only two of the cases (Ernst v. Anheuser-Busch Brewing Association (Tex. Civ. App.) 26 S.W. 457, and Burr v. Lewis, 6 Tex. 76, does it appear that the case came into the appellate court on motion to affirm on certificate. In Ernst v. Anheuser-Busch Brewing Ass'n defendants in error filed a motion to affirm on certificate, which was granted. On motion for rehearing, filed by plaintiff in error, the court permitted the plaintiff in error to file the record, and the case was then on the docket for trial on the merits as authorized by article 1611, and was thereafter affirmed with damages. This article, which provides for the filing of the transcript by the appellant or plaintiff in error under conditions therein provided, also expressly provides for a trial of the case thereafter "on its merits," and itself indicates that there is no trial on the merits on the hearing of a motion to affirm on certificate. The question of damages for delay was not involved in the case of Burr v. Lewis.
These reasons impel me to respectfully dissent.