Freeman v. Vetter

FLY, Associate Justice. — This cause was tried on November 1, 1909, and the motion for new trial was overruled on December 1, 1909. The term at which the cause was tried began on October 4, and ended on December 4, a period of nine weeks. On February 4, 1910, an [571] order was made extending the time in which the statement of facts and bills of exception could be filed until February 7, and on February 5, 1910, the statement of facts was filed. The bills of exception were filed on February 4. Appellee has filed a motion in this court to strike out the statement of facts and bills of exception, because they were not filed in the time prescribed by law. Appellant had thirty days, given by statute, from the final judgment in which to file a statement of facts and bills of exceptions. Acts of 1909, pp. 374 to 379. In that law it is provided that if the term of court may continue for more than eight weeks, that the statement of facts and bills of exception shall be filed within thirty days after rendition of final judgment, “unless the court shall, by order entered of record in said cause, extend the time for filing such statement and bills of exception.” The final judgment was rendered in the cause when the motion for new trial was overruled on December 1, 1909. Sabine & E. T. Ry. v. Joachimi, 58 Texas, 452; Barnhart v. Clark, 59 Texas, 552. In the first part of section 7 of the Act of 1909, thirty days are granted after the day of adjournment in which to prepare and file a statement of facts and bills of exceptions, and, in term time or vacation, upon good cause shown, the judge trying the cause may extend the time for any period that will not delay the filing of the statement of facts and transcript of record in the Appellate Court within ninety days from the time the appeal or writ of error is perfected. There is in the general provision of the section in question no requirement that the order granting an extension shall be filed or entered of record, but in the last part of the section hereinbefore quoted, which is applicable to courts which may be in session for more than eight weeks, it is required that the order granting an extension of time “shall be entered of record in said cause.” Unless the words “entered of record” require something to be done that is not required in regard to courts with shorter terms, there is no difference between the two kinds, except as to that provision which requires the filing of the statement and bills of exceptions at a time not more than thirty days from the date of the final judgment instead of thirty days from the time of adjournment. We are" of opinion that the order must be entered before the expiration of the thirty days, because if the order can be made one, five, ten or thirty days after the expiration o'f the thirty days given by law, the party would he obtaining an extension without an order for all that intervening time between the expiration of the statutory thirty days and the time when the order is made. We believe that the power of the judge to grant an extension of time is limited to some period before the expiration of the statutory time, and that when that time has expired the right to an extension is lost and the judge can not, by an order, revive it. The law seems to contemplate that everything necessary to the preparation of statements of facts and hills of exceptions shall be done within the statutory thirty days unless at some time before the expiration of that period the judge shall grant an extension of time. If this he the true construction to place upon the statute, appellant had lost his right to apply for and obtain an order of exten [572] sion of time on a request made at least thirty-five days after the expiration of the statutory thirty days. If it should be held that the order can only be made during a term of court, it must necessarily be the term at which the cause was tried, for to construe it otherwise would give courts in cities, the terms of which immediately follow each other, a vast advantage over courts that are held only twice in each year. The latter could not obtain any advantage from such a construction on account of the requirement that the transcript shall be filed within ninety days from the time the appeal is perfected. We can not presume that any such difference was intended to he made between the courts. This opinion applies only to those courts whose terms may continue for more than eight weeks, that portion of the law applying to courts with shorter terms not being the subject of construction herein. The motion to strike out the statement of facts and bills of exception is granted.