Douglass v. Mercer

SMITH, Chief Justice. J. A. Mercer recovered judgment by agreement against M. M.'Douglass, James D. O’Connor and D. B. Kreiger, jointly and severally, and T. J. O’Connor and F. H. Glason, as sureties on a replevy bond. Petition and bond for writ of error were filed in the present attempted appeal by all the above named defendants, except T. J. O’Connor, and citation in error thereon was served upon Mercer on September 30, 1938. The said T. J. O’Connor timely filed and prosecuted separate appeal by writ of error in this Court, but that appeal was transferred, by order of the Supreme Court, to the Austin Court of Civil Appeals, where it is now pending. On the other hand, a transcript in the present writ of error proceeding was tardily tendered in this Court by plaintiffs in error, together with a motion for leave to file the transcript. That motion was overruled, as was a motion for rehearing thereof. Douglass v. Mercer, Tex.Civ.App., 124 S.W.2d 401. Plaintiffs in error having failed to prosecute writ of error, defendant in error now seeks affirmance on certificate, by statutory motion therefor. To this motion plaintiffs in error have replied, pointing out that the appeal timely prosecuted by T. J. O’Connor is now pending in the Court of Civil Appeals at Austin, and have moved to postpone submission of the motion to affirm on certificate until the proceeding in that Court has become final. We conclude that the motion to affirm on certificate should be granted. This decision can in no way affect the appeal of T. J. O’Connor, pending in the *1001 Austin District, to which plaintiffs in error herein are not parties. As the plaintiffs in error in the present proceeding did not prosecute their appeal the right to an affirmance is absolute in the defendant in error. 3 Tex.Jur. 744, § S33. The decision in the T. J. O’Connor appeal cannot affect these plaintiffs in error, any more than the present decision can affect the rights of the said T. J. O’Connor, not a party hereto. In the case of Wandelohr v. Grayson County Nat. Bank, Tex.Civ.App., 90 S.W. 180, mandamus granted, Wandelohr v. Rainey, 100 Tex. 471, 100 S.W. 1155, a judgment was affirmed on certificate against certain losing parties, and, upon a transfer, the case was decided on the merits as to that party who had perfected its appeal. Wandelohr v. Grayson County Nat. Bank, Tex.Civ.App., 102 S.W. 746, writ refused. A later appeal by writ of error in the same case was also decided as to those who were not precluded by the certificate of affirmance. Wandelohr v. Grayson County Nat. Bank, Tex.Civ.App., 106 S.W. 413, affirmed, 102 Tex. 20, 108 S.W. 1154, on rehearing, 112 S.W. 1046. The motion to postpone the submission of the motion to affirm on certificate will be overruled, and the motion to affirm on certificate granted, as against the named plaintiffs in error in this proceeding.