While this motion was pending on motion for rehearing, we certified to the Supreme Court the questions hereinafter set out:
"This cause originated in the district court of Cooke county, a court which may not by law continue more than 8 weeks. D.C. Gerneth, a minor, sued by his next friend, his father, Otto Gerneth, the Galbraith-Foxworth Lumber Company, for personal injuries alleged to have been sustained by the minor. Judgment was entered for defendant on an instructed verdict on January 20, 1927. Plaintiff's amended motion for new trial was filed February 25, and overruled the same day. The January term of the court began January 3, and ended February 26th. The appeal bond was filed in the district court March 14th. The transcript was filed in this court June 7th. The statement of facts was filed the same day. In the district court, on May 16th, 79 days after the court had adjourned, appellant filed his motion to extend the time for filing the statement of facts in the *Page 216 trial court. The court had prior thereto allowed appellant 60 days in which to file the bills of exception and statement of facts. The motion to extend the time for filing the statement of facts was overruled, May 26, 1927, in the following order:
"`And the court having heard said application and the defendant's contest thereof, the evidence, and the argument of counsel, and being fully advised in the premises, is of the opinion that said application should be denied, because good cause has not been shown why the same should be granted.'
"On May 30th, attorneys for appellee agreed to the statement of facts presented as a statement of the facts heard in the trial court, in the following words:
"`In agreeing to this statement of facts, defendant does not consent to its being filed in any court, and specifically reserves the right to object to and oppose the filing of said statement of facts in any court, and to move to strike the same if filed, because the 80 days allowed for filing, under article 2246, R.S. of 1925, expired before same was presented to defendant's counsel on May 27, 1923, for examination and agreement, and the trial court refused to extend the time for filing because good cause was not shown by plaintiff entitling him to such extension, as shown by order entered in the trial court on May 26, 1927. This May 30, 1926.'
"The court, on May 31st, made the following approval:
"`Approved as a statement of facts,' but refused to order it filed. It was filed in the district clerk's office June 2d, and in this court June 7, 1927. In this court appellee filed, on June 9th, a motion to strike the statement of facts from the files, which motion we granted, as shown by our opinion handed down July 9th. There was brought up no record of the evidence heard in the trial court on the motion to extend the time, either by a statement of facts or by bills of exception, and no evidence was offered here, by appellant or otherwise, and we held that the trial court was the primary tribunal, at least, to determine the sufficiency of the reasons urged for filing of a statement of facts after time, and in the absence of a statement of facts or a bill of exceptions showing the evidence, we are not authorized to overrule the trial court's action.
"At the same time, on June 18th, 112 days after the adjournment of the trial court, and 96 days subsequent to the filing of the appeal bond, appellant filed his motion to file his briefs. A copy of the briefs had not been filed in the trial court, nor was there any waiver shown. But on the authority of such cases as S. A. A. P. Ry. Co. v. Holden,93 Tex. 211, 54 S.W. 751, and Jackson v. H. E. W. T. Ry. Co., 293 S.W. 865, by the Beaumont Court of Civil Appeals, and Speer v. Rushing, 178 S.W. 1012, by the Austin Court of Civil Appeals, we granted this motion, though appellee vigorously contested the motion.
"Appellant has filed a vigorous motion for rehearing on our order to strike the statement of facts from the files, and has attached to said motion several affidavits to the effect that the father, suing as next friend of the minor, is a poor man, making his living by daily labor, and that on account of weather conditions, he did not work regularly about the time of this judgment and for several months subsequent thereto, and that he secured the statement of facts as soon as he was able to make arrangements to pay for it, and promptly tendered it to the opposing counsel for agreement, and to the trial court for approval promptly thereafter. No excuse was offered for the failure to present this proof at the time the original motion was heard in this court.
"In considering this motion, we are not entirely agreed as to what our action should be. Appellee has filed a motion to strike from the motion the affidavits attached thereto, inasmuch as its counsel claim that we are not authorized to consider the same, when on hearing of the motion in the trial court evidence was heard and no record of that evidence is shown. Therefore, we deem it advisable to certify to your honors the following questions:
"(1) Did this court err in striking the statement of facts from its files?
"(2) Did this court err in permitting the briefs of appellant to be filed, under the circumstances shown?
"(3) May we, under the facts shown, and under article 2245, Rev.Civ.Statutes, consider the affidavits attached to appellant's motion for rehearing, which, in the main, are concerning matters which were known to appellant and his attorneys at the time the trial court heard the motion to extend the time for the filing of the statement of facts?
"(4) May an appellate court permit a statement of facts to be filed which has not first been lawfully filed in the trial court? If so, when? The cases of Bank v. Bland (Tex.Civ.App.) 291 S.W. 657, State v. Lincoln (Tex.Civ.App.) 147 S.W. 1195, Magee v. Magee (Tex.Civ.App.) 272 S.W. 252, and Ziegler v. Hunt (Tex.Com.App.) 280 S.W. 546, seem to be pertinent to this question."
In answer to the first question propounded, the Supreme Court held that, if the Court of Civil Appeals intended to hold as a matter of law that it had no jurisdiction to pass upon the question, this court erred; but if we concluded as a fact that the appellant tendering the statement of facts to the clerk for filing had not shown to the satisfaction of this court due diligence to have the statement of facts filed within the time prescribed by law for filing the same, and that his failure to file the same within said time was due to the fault of himself or his attorney, and was not the result of causes beyond his control, then the Court of Civil Appeals did not err in striking the statement of facts from the record, citing Rains v. Wheeler, 76 Tex. 390, 13 S.W. 324. The Supreme Court further held that the statement of facts under discussion has all the requisites of such a document, including the agreement of the parties and the approval of the trial judge; that while the document is an approved statement of facts proved upon the trial of the case, duly authenticated by the signature of the trial judge as well as the agreement of the parties, and while it has the file mark of the clerk, yet the date when this file mark was placed upon it was not within the time prescribed by law.
The Supreme Court further held that while *Page 217 the statement of facts was filed by the district clerk, this action of the clerk was without the authority of the trial judge ordering it to be filed, and that the filing by the clerk on the date it was filed was after the time expired within which the statement of facts could have been legally filed without such an order from the trial judge. So the action of the clerk was a nullity. The court further held that article 2245, Rev.Civ.Statutes of 1925, authorizes the Courts of Civil Appeals in a proper case to order filed in that court a statement of facts which has been tendered for filing at a time and under such circumstances as meets the conditions prescribed by said article of the statutes, where the document has been approved as a statement of facts by the trial judge following an agreement of the parties that the same constitutes a true statement of facts, and where, as in this case, the trial court has lost jurisdiction of the case by reason of a previous filing of an appeal bond. The court cites the case of Stewart v. Moore, 291 S.W. 891, by the Commission of Appeals, where it is said:
"It is apparent from the record in this cause that the plaintiffs in error filed their appeal bond, duly approved, within the time prescribed by law. This admitted fact divested the county court of Tarrant county of all jurisdiction over the case."
The answers to the certificate further state that the Court of Civil Appeals has authority to consider the affidavits presented by appellant in support of its claim that, notwithstanding the statement of facts was not tendered for filing within the time prescribed by law, yet the appellant is entitled to have the Court of Civil Appeals order the statement of facts filed in that court and considered in its disposition of the case. Heflin v. E. Ry. Co. of New Mexico, 106 Tex. 23, 155 S.W. 188. The answers to the certificate disclaimed any intention to express an opinion as to the sufficiency of the facts stated in the affidavit to justify the Court of Civil Appeals in ordering the filing and in considering the statement of facts. Having answered question No. 3 in the affirmative, the answers to the certificate state that it necessarily follows that the first part of question No. 4 must also be answered in the affirmative. The Supreme Court declined to answer the second paragraph of said question for the reason that it does not present a concrete question of law. The Supreme Court further held that we did not err in permitting the briefs of appellant to be filed under the circumstances shown, citing San Antonio A. P. Ry. Co. v. Holden, 93 Tex. 211, 54 S.W. 751, Speer v. Rushing (Tex.Civ.App.) 178 S.W. 1012, and the authorities there cited.
Considering the question anew, and in the light of the answers to the certified questions, we conclude: That we did not err in striking the statement of facts from the record. That, as stated in our original opinion, the trial court is primarily, at least, vested with the power to grant an extension for filing a statement of facts and other documents and papers, and, unless it is shown that the discretion vested in him has been abused, the appellate court will not disturb his conclusion.
The motion for rehearing is overruled.