Opinion
No. 6900.
Decided June 16, 1937.
Appeal and Error — Affirmance on Certificate — Transcript.
When an appellant, after giving notice and filing appeal bond, fails to file transcript in Court of Civil Appeals, in statutory time, and abandons his appeal, then attempts to prosecute an appeal by means of a writ of error, the Court of Civil Appeals shall, upon motion seasonably filed, affirm the judgment upon certificate and dismiss the writ of error.
Error to the Court of Civil Appeals for the Seventh District, in an appeal from Hale County.
Suit by the State of Texas against Ludwig Irlbeck and others asking for an injunction to restrain the operation of a dance hall on land under the control of the defendant, alleging that such dance hall was a public nuisance. The trial court granted the injunction. Defendants appealed to the Court of Civil Appeals and filed appeal bond, but delayed beyond the statutory period allowed for the filing of the transcript and statement of facts in that court, and for that reason attempted to abandon their appeal and prosecute the case by a writ of error. On motion by the State the judgment of the trial court was affirmed on certificate (not reported), and defendants have brought error to the Supreme Court.
The case was referred to the Commission of Appeals, Section A, for their opinion thereon and the Supreme Court adopted same and ordered judgment entered in accordance therewith.
Judgment of the Court of Civil Appeals is affirmed.
M. J. Baird, of Plainview, for plaintiff in error.
A litigant, against whom a judgment has been rendered in the trial court and who has perfected his appeal but does not supersede said judgment in any manner, has a right to abandon such appeal and sue out a writ of error and have said cause reviewed by the appellate court. Harding v. City of Raymondville, (Com. App.) 58 S.W.2d 55; Eppstein Co. v. Holmes, 64 Tex. 560; Reef v. Hamblen, 47 S.W.2d 375.
Meade F. Griffin, of Plainview, and J. H. O'Neal, of Tulia, for defendant in error.
This suit was originally instituted by the State of Texas against Ludwig Irlbeck and others, plaintiffs in error here, to have certain premises declared a nuisance, and for an injunction. Upon hearing, the district court declared a nuisance existed and enjoined the defendants in the operation and maintenance of same. This judgment was entered on October 5, 1934. Motion for new trial was overruled on October 13, 1934, and defendants gave notice of appeal, and timely filed appeal bond. They delayed, however, more than the statutory period allowed for filing the transcript and statement of facts in the Court of Civil Appeals, and for that reason attempted to abandon the appeal and to prosecute a writ of error. On motion the judgment was affirmed by the Court of Civil Appeals on certificate.
At the time application for writ of error was granted there was some apparent conflict in the decisions. The Supreme Court, however, has in the recent case of Jarrell v. Farmers Merchants State Bond Bank, 128 Tex. 332, 99 S.W.2d 281, definitely settled that when an appellant, after giving notice of appeal and filing appeal bond, fails to timely file transcript in the Court of Civil Appeals and abandons such proceeding, then attempts to prosecute appeal by writ of error, the Court of Civil Appeals shall, upon motion seasonably filed, affirm upon certificate, and dismiss writ of error. That decision disposes of the present case, and the judgment of the Court of Civil Appeals is affirmed.
Opinion adopted by the Supreme Court June 16, 1937.