This is a motion by appellees to affirm on certificate. The record on appeal was filed by appellant within due time. Neither the appellant nor appellees briefed the case, and the appellant moved to dismiss the appeal, which motion was granted, and order entered, at a former day of this term, dismissing the appeal.
The facts do not bring the case within the letter of the statute which provides for affirmance on certificate, "in case the appellant or plaintiff in error shall fail to file a transcript of the record," etc. In the case of Farquhar v. McFarland, 13 Tex. 92, affirmance on certificate was denied on similar facts. We have found no other case dealing with the question, though in the case of T. N. 0. Railway Co. v. Hare,4 Tex. Civ. App. 18, 23 S.W. 43, there is an inferential assumption that an affirmance on certificate might not be had in such case.
The motion for affirmance on certificate will be denied.