This case is before the court on motion of defendant in error to affirm on certificate because of the failure of plaintiff in error to file the transcript within the time provided by law. The record discloses that the trial court rendered final judgment on November 7, 1938. Petition for writ of error was filed on March 13, 1939 and service was had thereon on March 15, 1939. The time within which the transcript should have been filed in the Court of Civil Appeals expired May 14, 1939. R.S. art. 1839, as amended 1931, Vernon's Ann.Civ.St. art. 1839. Defendant in error filed its motion to affirm on certificate August 8, 1939, during the term to which plaintiff in error's appeal was returnable.
Under the provisions of R.S. art. 1831, Vernon's Ann.Civ.St. art. 1831, the defendant in error is entitled to have the judgment of the trial court affirmed. Art. 1841, R.S.; 3 Tex.Jur. 737; Beaver v. Beaver, Tex. Civ. App. 57 S.W.2d 279, and authorities there cited.
The motion to affirm on certificate is granted and the judgment of the trial court affirmed. *Page 771