ON MOTION FOR REHEARING
Defendant, Hill Chemical Company, Inc., has filed a most forceful and excellent motion for a rehearing in this case. This writer did not feel like the attorneys had used due diligence in getting an extension of time to file the Transcript.
The Transcript is the instrument that must be filed in due form within 60 days after the judgment is signed and filed by the Trial Judge, or within 60 days after the motion for new trial, or the amended motion for new trial is overruled by the trial judge, provided, the trial judge signs and files an order within 45 days after the motion for new trial, or the amended motion for new trial, has been filed with the District Clerk. Otherwise, the motion for new trial, or the amended motion for new trial is overruled by operation of law.
Defendant admits that the amended motion for new trial was overruled by operation of law on July 12, 1969. It, prematurely, filed a written notice of appeal on July 6, 1969. On July 28, 1969, the trial judge signed and filed an order overruling the amended motion for new trial, which he had no authority to do. Defendant had already prepared a supersedeas bond dated July 24, 1969, which was approved and filed by the District Clerk on July 25, 1969. The defendant, in securing the Transcript, apparently thought the order signed by the trial judge would govern the 60 day period for the filing of the Transcript because it was filed in the Court of Civil Appeals on Sept. 25, 1969, which would have been in time if the order of the trial judge in overruling the amended motion for new trial had been effective. But, such was not the case.
We feel that in order to show due diligence, and a “Good Cause”, the attorneys attempting to perfect the appeal are required to secure some evidence, in writing, verified by affidavit, from the District Clerk or some one else necessary to show good cause, setting up a good cause, or reason, why the District Clerk will not be able to prepare the Transcript for filing in the Court of Civil Appeals within the 60 days as required by Rule 386, T.R.C.P. The affidavit must set out the facts in detail, must advise the Court of the date of the judgment, or order being appealed from, and also whether or not a request for additional time was made to the trial court. 4 T.J. 2nd 89, Sec. 565, and cases cited therein. When they did not do that in this case, the Court of Civil Appeals did not have any jurisdiction provided by either of our Constitutions, Statutes or Rules of Civil Procedure to grant the extension of time. 4 T.J. 2nd 90, Sec. 566; 3 T.J. 2nd 492, Sec. 231, and the cases cited in both sections.
Jurisdiction over a case must be determined by the Court of Civil Appeals whether or not the question is raised by either party to the suit. 3 T.J. 2nd 300, Sec. 33, and authorities cited therein.
The Transcript, in proper form, gives the Court of Civil Appeals jurisdiction. Rule 386, T.R.C.P.; 3 T.J. 2nd 647, Sec. 393. It is not necessary, or mandatory, that the Transcript and Statement of Facts be filed at the same time. Such was not true in this case.
In this case there is no affidavit from the District Clerk that he could not prepare the Transcript within the 60 days time provided by Rule 386, T.R.C.P. That is the instrument that gives the Court of Civil Appeals jurisdiction. The Statement of Facts could have been filed later on the affidavit of the Court Reporter.
The motion is overruled.