Smith v. Continental Supply Co.

On Motion to Affirm on Certificate. This case is before us under the order of the Supreme Court upon transfer from the Court of Civil Appeals of the Second District. On February 12, 1926, the defendant in error filed its motion in this court to affirm the judgment of the trial court upon certificate, without reference to the merits. Upon the face of the motion, defendant in error is clearly entitled to an affirmance. It appears that the plaintiff in error perfected his appeal from the judgment of the district court of Wichita county by filing his supersedeas bond with the clerk of that court on June 13, 1925; however, he did not file his record on appeal with the clerk of the Fort Worth Court of Appeals within the 90 days allowed by law, which time would have expired on September 11, 1925. On September 30th he filed his application for writ of error, and citation was waived on the same day. Under this proceeding he filed with the clerk of the Fort Worth Court of Appeals his transcript on the 9th day of October, 1925. Prior to the time his transcript was filed in that court the defendant in error on September 17th filed its motion there to affirm the judgment on certificate.

Accompanying the record in this case is the certificate of the clerk of the court of the Second District, which shows that no orders were made by that court in this case prior to the date of its transfer to this court. However, in reply to the defendant in error's motion to affirm on certificate filed in this court, the plaintiff in error has attached a certified copy of an order from the minutes of that court, dated November 7, 1925, made in this case, as follows:

"Cecil H. Smith v. Continental Supply Co. 10419-11553. "November 7, 1925.

"This day came on to be heard the motion by appellee to affirm the judgment in this cause on certificate, and the same, having been duly considered by the court, is hereby overruled."

This order was, of course, made upon the first motion to affirm on certificate, and therefore bears a different docket number; but we assume that the cases are otherwise identical. The motion referred to in the above order, and which was overruled, is not before us; but we must presume, in support of the order, that the defendant in error either waived its first motion to affirm on certificate or that plaintiff in error, under the provisions of R.S. 1925, art. 1841, showed good cause why his transcript on appeal was not filed in time. This presumption arises further from the fact that the court has permitted the transcript on the writ of error proceedings to be filed.

Such being the state of the record, the motion before us to affirm on certificate is overruled.