T. W. House & Co. v. Williams

Ogden, J. The above three causes were appealed from Houston county, and under the law the transcripts should have been filed in this court on or before the fourth day of ¡December, 1871. But the appellants failing to bring up the records as required, the appellees in each cause filed motions to affirm, on certificate, without reference to the merits, and the. judgments of the ¡District Court were then affirmed, under Article 1589, Paschal’s [348] Digest. And now the appellants have moved to set aside the judgment of affirmance, and for leave to file their transcripts, and have the causes determined upon their merits. The grounds for the motion are, (1) that the judgment of affirmance was improperly awarded ; (2) that the appellants were unavoidably delayed in sending up the transcripts ; and (3) that the affirmance without regard to the merits of the causes would work great injury to the parties. In the case of De Leon v. Owen, 3 Texas, 154, this court, in considering the questions here presented, said : ' ' These legislative rules are certainly very stringent, but there is no ambiguity in them. * * * Legislative rules are inflexible, and when explicit and clearly understood, they must be enforced without regard to the individual injury that may be the result.’' And under the recognized authority of that case, we do not understand ourselves authorized to take into consideration any individual injury which might result as a reason for dis-' regarding an unambiguous législative rule, when applied to the cases at bar. It is' contended for the appellants that though they had failed to file their records in this court within the time prescribed by law, and though the appellees were, under the law, entitled to an affirmance of the judgments on certificate properly made and filed; yet that the certificates filed in these cases were not in conformity with the requirements of the statute, and not such as would entitle them to an affirmance of the judgments, and that therefore the action of this court upon those certificates should be set aside. It is true that the certificates in either of these cases do. not conform with the rule laid down by this court, at its present session, in the case of Loyd et al. v. Barnett, 36 Texas, 190, and had the insufficiency of the certificates been presented before the judgments of affirmance had been rendered, we might have entertained and considered the question as a reason for refusing to affirm. But the objec [349] tions to the certificates come too late after judgment, particularly since the certificates are a literal compliance with the statute, and such as have been recognized by this court as sufficient. And as the judgments were affirmed when the rulings of the court recognized the certificates as complying with the law, we aré unwilling to set aside those judgments because of a subsequent ruling in relation to an unexpressed but legitimate intendment of the law. The transcripts were not filed in this court within the time prescribed by law, and the judgments were affirmed without reference to the merits, and now appellants ask, under the provisions of Article 1590, Paschal’s Digest, to have the judgment set aside, because of unavoidable delay in bringing up . the record. In Chambers v. Fish, 20 Texas, 344, where a motion was made for leave to file the transcript after the expiration of the time, but before a judgment of affirmance, the court says: “The object of the statute is to enable the court to relieve any one who, by accident, mistake or misfortune, has failed to file the transcript. But in administering this relief it is the duty of the court to see, so far as it is practicable, that it should result in no injury to the appellees.” This motion was made before a motion to affirm, but the court clearly intimate that if a judgment had been asked, then the appellant would have been held to a much more stringent rule; but even in that case the court held that a good cause for the delay must be shown, and the granting of the motion must work no injury to the appellee. In the cases at bar the motions are to set aside the judgments, and the principal reason given for delay in filing the transcripts as required is that appellant’s counsel died some two months before the. time for filing said transcripts. We cannot understand that to be any good or sufficient cause for not sending up the records, as the appellants themselves could very well attend to sending up the record without the aid of any counsel. But if [350] counsel were necessary, then it is not shown that there were not other able and worthy attorneys whose services could have been secured without trouble or delay. Indeed, we are inclined to look upon this excuse as evidence of neglect on the part of appellants, rather than unavoidable delay. Had the attorney lived, then appellants might have had some cause for confiding in the ability and promptness of their counsel and adviser, but on his death it was their duty to attend to their interests themselves, and if they have failed to do so when fully within their power, then they cannot complain if they have to suffer the consequences. Mow the rights and interests of the appellees have vested, and must be respected in the absence of strong reasons for setting them aside. The case of Kernaghan v. Hall, 31 Texas, 128, we think decisive of these cases. The cause for delay as shown in that case is much stronger than in the cases at bar, and yet the diligence shown was characterized by the court as negligence. It may be that the appellants, not being attorneys, were innocent of any intended negligence, and possibly ignorant of the necessity of any prompt action in the premises until too late to remedy the evil; but if so, that was their misfortune; at any rate, they can hardly expect to be relieved against their own supineness and the vigilance of others. It appears from the certificate of the District Court clerk, and affidavits filed, that on perfecting the appeal the transcripts in each case were promptly made out, and were lying in the clerk’s office for months to be demanded and forwarded to this court by the appellants, but were uncalled for until after the judgments of affirmance by this court. We think this clearly not a sufficient showing of a good cause for the delay, and the motion to set aside the judgment in each case is refused. Motion overruled. Opinion delivered May 27, 1872. [351] Motion for rehearing filed and continued. Subsequent to the motion for leave to file transcript in Ho. 656, appellants brought the case by. writ of érror within the two years from date of the judgment below. The motion to vacate the order of affirmance becomes important to ascertain the right to their writ of error. This case brought by error is Ho. 1667.