An examination of the record in this case reveals that judgment was rendered on the 29th of January, 1932, as of January 27th; that on January 29th a motion for a new trial was filed and an amended motion filed February 4th; that on the same day said amended motion was overruled and notice of appeal given to the Court of Civil Appeals for the Fifth Supreme Judicial District; that on May 5th a motion for leave to file transcript was filed in said court by appellant; that on May 7th, the said motion was granted and the transcript filed on May 8th; and that the ease was thereafter transferred to this court by the Supreme Court.
It appears in the motion filed that the transcript was not tendered for filing in the Court of Civil Appeals for the Fifth District until the 61st day after the motion for a new trial was overruled, but, in fact, the motion was in fact filed on the 91st day.
Article 1839 as amended by Acts Forty-Second Legislature, (1931) c. 66, § 1 (Vernon’s Ann. Civ. St. art. 1839), reads: “In appeal or Writ of Error the appellant or plaintiff in error shall file the transcript with the Clerk of the Court of Civil Appeals within sixty days from the final Judgment or Order overruling motion for new trial, or perfection of the Writ of Error; provided, that for good cause shown before the expiration of such sixty day period, the Court shall permit the transcript to be thereafter filed upon such terms as it shall prescribe.”
The amendment was enacted with the following emergency clause (section 3): “The fact that the crowded condition of the dockets of the trial and Appellate Courts of the State demands that the laws governing the practice and procedure therein be so amended as to expedite and simplify the business of the Courts as soon as possible creates an emergency and an imperative public necessity. * ⅜ ⅜ ”
Under this amendment this court has decided that we had no power to permit the filing of a transcript after the 60-day period, unless a motion to extend the time had been filed within such period.
A like view appears to have been taken by several of the other Courts of Civil Appeals. Walker et al. v. Lyles et al., 45 S.W.(2d) 315 (Texarkana); Reasonover v. Reasonover, 46 S.W.(2d) 382 (San Antonio); Reed v. Great American Indemnity Co., 47 S.W.(2d) 860 (Eastland); Reese et al. v. Owens et al., 48 S.W.(2d) 697 (Beaumont).
On the other hand, the Dallas Court of Civil Appeals, with Chief Justice Jones dissenting, held that, on a showing by the appealing party that he had exercised reasonable diligence to file during the 60 days, he would be entitled to an extension without regard to whether the matter was brought to the attention of court before or after the expiration of the 60-day period. Hamilton Motor Co. v. Muckleroy (Tex. Civ. App.) 46 S.W.(2d) 451.
The only eases in which the Supreme Court has had the question before it, as far as we have been able to ascertain, were in the ease of Reasonover v. Reasonover, supra, in which a writ of error was refused, and in the recent case of Van Horn et ux. v. Hidalgo County Water Control & Improvement District No. 1, 51 S.W.(2d) 641, 642, also by the San Antonio Court of Civil Appeals.
In the latter ease plaintiff in error filed a motion for an extension of time to file the record, after the expiration of the 60-day period. The motion was granted over the protest of defendant in error, but no motion for a rehearing was filed. The cause was later submitted, and the judgment reversed and the cause remanded. Defendant thereupon filed a motion for a rehearing, and prayed that the order granting the motion to extend the time for filing the record be set *197aside; that the record be stricken; and that the judgment be either affirmed on certificate, or, in the alternative, on the merits. The court, after reciting the facts above, and discussing its previous holdings and the holdings of other courts on the effect of the amendment, said: “We conclude, in view of the course the matter has taken, that it is now too late, if we were so disposed, to reopen the question and strike the record.”
The Supreme Court, in granting a writ of error, made the following notation: “The Hon. C. C. A. erred in granting the motion of plaintiffs in error for an extension of time for the filing of the transcript and statement of facts in this cause.”
From the fact that the Supreme Court refused a writ of error in the first case and granted the writ with the notation above quoted in the latter case, we think we are justified in concluding that the Supreme Court feels, as this court has felt, that a Court of Civil Appeals has no power to entertain a motion to extend the time for filing the transcript, where the motion is filed after the expiration of the 60-day period.
The Dallas Court of Civil Appeals granted the motion in this case before the writ was refused in the Reasonover Case and before the writ was granted in the Van Horn Case; therefore they had no way of knowing the attitude of the Supreme Court on the question. With this condition existing and appearing from the record before us, the question arises as to what action we should take, if any.
That is, should we proceed to dispose of the cause and consider the transcript before us for all purposes, or should we, by reason of our opinion that the Dallas court had no jurisdiction to entertain the motion which it granted, now strike the transcript from the record.
■ We have concluded that the transcript, under the facts related, has no place in the record; that the action of the Dallas court in permitting it to be filed was beyond the power of that court; and that we should now strike the same.
It is therefore ordered that the transcript be stricken from the record, and that the appeal be dismissed for failure to file the transcript within the time provided by law.