Motion by appellee city of San Marcos to vacate our former order overruling its motion to affirm on certificate, and our former order permitting appellant to file transcript after the time allowed by law.
The term of court at which the case was tried expired February 7, 1930. The appeal bond was filed February 10, 1930. By extension order appellant was given ninety days after adjournment within which to file statement of facts and bills of exceptions. These were not agreed to by appellee’s attorney fin-til May 7, 1930, and appellee’s attorney agreed with appellant’s attorney, if he could not get them filed on that date, which was then supposed to be the last day for filing, they might be filed back as of within the ninety days. The bills of exceptions were in fact filed late at night on May 7th.' The clerk’s certificate shows that he had the transcript ready, with'the exception of the bills of exceptions, and, had he been requested by appellant’s attorney, he could have completed the transcript, including said bills, and delivered it to appellants attorney on May 9th, two days before the time allowed by law within which to file the transcript in this court. The transcript was tendered to the clerk of this court on May 20th, and on May 22d appellee filed its motion to affirm on certificate. No valid excuse for not filing the transcript within the time allowed by law is presented, and we are therefore not warranted in permitting the transcript to be filed, or in denying the motion to affirm on certificate. Smith v. Joyce (Tex. Civ. App.) 256 S. W. 616; Texas Jurisprudence, vol. 3, § 521, and authorities there cited.
It appears from the record that this is a case which would be entitled to advancement, and involves questions the speedy determination of which is very much to the interest of appellee, and the delay occasioned by failing to file the transcript within the time allowed by law would have the effect unreasonably and unnecessarily to postpone the decision to the prejudice of appellee. : ■
The motion to vacate is granted; the order allowing the transcript to be filed is set aside; and the cause stricken from the docket. The order overruling the motion to affirm on certificate is set aside; said motion is granted; and the cause is affirmed on certificate. ■
Motion granted.