April 3, 1913.
Appeal from and Error to District Court, Martin County; James L. Shepherd, Judge.
Action by J. C. Chambers against M. A. Grisham and wife. On motion to affirm on plaintiff's appeal, and to affirm the proceedings upon plaintiff's writ of error, and to require the clerk of the Court of Civil Appeals to file a transcript of the proceedings upon writ of error granted to plaintiff. Motion to affirm appeal overruled, motion to affirm proceedings upon writ of error overruled, and motion to require the filing of the transcript granted.
Theodore Mack, of Ft. Worth, A. H. Kirby, of Abilene, A. L. Green, of Stanton, and John B. Howard, of Midland, for appellant and for plaintiff in error. R. N. Grisham, of Sweetwater, and Stephens Miller, of Ft. Worth, for appellees and for defendants in error.
This cause was tried in the district court of Martin county and judgment there rendered on November 29, 1911, that the plaintiff, Chambers, take nothing by his suit and the defendants, Grisham and wife, go hence without day. On January 6, 1912, Chambers perfected an appeal from this judgment by filing a cost bond, and on March 30, 1912, the transcript of the record upon such appeal was filed by him in this court. On May 1, 1912, appellant filed a motion to dismiss his appeal, and on May 8, 1912, an order of dismissal was entered. The term of this court to which said appeal was returnable terminated on the first Monday in July, 1912. On November 26, 1912, Chambers filed in the lower court his petition for a writ of error for the removal of said judgment to this court for revision and correction, and upon the same date filed writ of error cost bond. Citation in error was served on Grisham and wife December 3, 1912. On January 27, 1913, a motion was filed by Grisham and wife praying the court to affirm the judgment of the lower court because of failure to file transcript of the record upon appeal within the time prescribed by law. This motion was accompanied by a certificate of the district clerk, in accordance with provisions of article 1610, Revised Statutes of 1911, and on February 19, 1913, this court entered an order affirming the cause upon such certificate. On March 1, 1913, a transcript of the record upon the writ of error proceedings was tendered by Chambers to the clerk of this court for filing. This was within the time within which the transcript of the writ of error proceedings could properly be filed; the time not expiring until March 3, 1913. On March 1, 1913, Chambers filed a motion for a rehearing of the judgment of affirmance upon certificate, calling our attention to the following authorities: Laughlin v. Dabney, 86 Tex. 120, 24 S.W. 259; Holland v. Brown, 152 S.W. 1195; Thorn v. Lanier, 57 Tex. Civ. App. 67. 121 S.W. 715; Telegraph Co. v. Wofford, 32 Tex. Civ. App. 427, 72 S.W. 620; Pickett v. Mead, 25 S.W. 654; Berry v. Blankenship, 30 Tex. 380. On March 7, 1913, Grisham and wife filed a motion to affirm the writ of error proceedings upon the ground that plaintiff in error had not filed in this court a transcript of the error proceedings within the time prescribed by law. On March 12, 1913, a motion was filed by plaintiff in error that the clerk be directed to file the transcript of the writ of error proceedings; the same having been tendered to him for filing within the time prescribed by law. When the transcript of the proceedings upon writ of error was tendered to the clerk, he declined to file the same because there was then pending the motion filed by Grisham and wife on January 27th praying the court to affirm the original appeal.
Under the authorities cited above, it is very clear that a motion to affirm an appeal upon certificate, in accordance with the provisions of article 1610, Revised Statutes of 1911, must be filed before the termination of the term of court to which the appeal was returnable; and the appeal having been returnable to the term of this court which terminated on the first Monday in July, 1912, and the motion to affirm the same not having been filed until January 27, 1913, it therefore follows that the order entered by this court on February 19, 1913, affirming the cause, was inadvertent and erroneous.
The following authorities clearly establish the right to sue out a writ of error after the abandonment of an appeal theretofore taken: Insurance Co. v. Clancey, 91 Tex. 467, 44 S.W. 482; Hall v. La Salle County, 46 S.W. 863; Morris v. Morgan, 46 S.W. 667; Blackman v. Harry, 45 S.W. 610; Harrington v. Blankenship, 52 S.W. 585.
This right, however, to subsequently prosecute a writ of error is subject to the absolute right of the appellee in the cause to an affirmance upon certificate of the original appeal; and this right of affirmance cannot be defeated, even though the transcript of the writ of error proceedings be filed in the appellate court prior to the filing of the motion to affirm the appeal upon certificate.
But this absolute right of the appellee is subject to the condition that he seasonably file his motion to affirm prior to the termination of the term of the Court of Civil Appeals to which the appeal is returnable. Welch v. Weis, 99 Tex. 356, 90 S.W. 160; Thompson v. Anderson, 82 Tex. 237, 18 S.W. 153; Insurance Co. v. Clancey, supra; Wandelohr v. Bank, 90 S.W. 180; Railway Co. v. Ray, 19 Tex. Civ. App. 416, 47 S.W. 477; Filhol v. Land Co., 19 Tex. Civ. App. 688, 49 S.W. 669.
The motion to affirm the original appeal upon certificate came too late, and there is nothing to prevent Chambers from pursuing an appeal by writ of error, under the authorities above cited. It is therefore ordered: First. The order of affirmance entered herein on February 19, 1913, is revoked and set aside, and the motion to affirm the appeal, filed herein on January 27, 1913, is overruled. Second. The motion of the defendants in error, Grisham and wife, to affirm the proceedings upon writ of error, is overruled, for the reason that such transcript was tendered for filing within the time prescribed by law. Third. The motion of plaintiff in error to require the clerk of this court to file the transcript of the proceedings upon writ of error is granted, and the clerk is directed to file the same as of the date of its tender, March 1, 1913.