I believe that under article 1629 it is the duty of the Court of Civil Appeals to add the 10 per cent. damages where there is an affirmance on certificate. As a general power it is within the "discretion" of the courts, "on the trial of cases" in the Courts of Civil Appeals, under article 1627, to include such damages as they may deem proper, "not exceeding 10 per cent.," but by special statute (article 1629) the penalty of the law is inflexible "where the court shall be of opinion that an appeal or writ of error has been taken for delay, and that there was no sufficient cause for taking such appeal." When such condition exists the language of the statute is mandatory that "then, and in that case" the defendant "shall pay the 10 per cent." damages, My opinion is that a proper construction of the statutes mentioned is that, if an appeal is taken "for *Page 327 delay," and without "sufficient cause," it becomes the duty of the court to add the full 10 per cent. penalty without regard to affirmance on "certificate" or "on the trial of cases." Article 1629 makes no distinction between the methods of affirmance. It punishes all frivolous appeals. There is no reason why the appellate court cannot determine in any proceeding to affirm on certificate whether an appeal is "for delay" and without "sufficient cause." In fact, an affirmance on certificate will not be granted under article 1610 if "good cause" can be shown why the transcript was not filed; and, even though the judgment is affirmed on certificate, under article 1610, the court may, "at any time within 15 days after such affirmance," permit the transcript to be filed and the "case to be tried on its merits," provided the appellant show "good cause" why the transcript was not filed in time. Although the affirmance on certificate is obtained upon motion, and not upon a trial of the case, nevertheless the appellant is served with notice of such motion under rule 15a of the Court of Civil Appeals (142 S.W. xi) and surely, if the appellant has any excuse "for delay" of the appeal, or proof of "good cause" for not filing the transcript, he is given reasonable opportunity to furnish it under the statutes and rules cited. If the appellant fails or refuses, after such notice and opportunity, to show "good cause" for not filing the transcript and prosecuting the appeal, the court is warranted in finding that the appeal was "for delay" and without "sufficient cause." On the other hand, if the appellant appears under article 1610 and shows "good cause" why the transcript was not filed, and the court then allows the transcript to be filed and permits the "case to be tried on its merits" under article 1611, it is still within the discretion" of the court, under article 1627, to add such damages as it may deem proper, "not exceeding ten per cent."