Opinion
Motion No. 12517.
October 18, 1961.
Appeal from the 53rd District Court, Travis County, Herman Jones, J.
Gay Meyers, Austin, for appellant.
Byrd Davis, Austin, for appellee.
Appellee has filed a Motion to Affirm on Certificate upon the ground that appellant has failed to file a transcript of the record in a proper time in this Court. Since no transcript of the record has been filed in this Court the Motion to Affirm on Certificate is granted and the judgment of the Trial Court is in all things affirmed against the appellant National Surety Corporation and Fireman's Fund Insurance Company as surety on the appeal bond.
Appellee also prays that this Court, pursuant to Rules 435 and 438, Texas Rules of Civil Procedure, award an additional 10% penalty to the amount of the judgment already entered upon the ground that the appeal has been taken for delay. Rule 435 provides that when a Court of Civil Appeals affirms the judgment of the lower court it may in its discretion include in the judgment damages not to exceed 10% of the amount of the original judgment as it may deem proper. In the exercise of such discretion this Court is not of the opinion that the award of damages under Rule 435 is warranted.
Even if the award of the 10% amount in dispute as damages is mandatory under Rule 438, this Court is without authority to make such an award since a complete record of the proceedings in the Trial Court has not been filed in this Court in order that by an inspection thereof we may conclude from the whole record that the appeal was taken for delay and that there was no sufficient cause for taking such appeal. Granberry v. Jackson, 62 Tex. Civ. App. 597, 132 S.W. 508; Scott v. McClain, Tex.Civ.App., 246 S.W. 1118; Ramey v. Phillips, Tex.Civ.App., 253 S.W. 323; Texas State Life Ins. Co. v. Aparicio, Tex.Civ.App., 129 S.W.2d 794; 4 Tex.Jur.2d, Sec. 867, p. 445.
Appellee's motion to award an additional 10% penalty as damages under Rule 435 and Rule 438, T.R.C.P., is denied. All costs of this appeal are taxed against appellant, National Surety Corporation.
Motion granted in part and in part denied.