Temple v. Moores

SELLERS, J. Appellee on November 30,1931, filed in this court in the above cause a motion to affirm on certificate on the ground that appellant has failed to file a transcript of the record in this cause in this court as required by law. Accompanying the motion is a certified copy of the judgment in the court below entered on June 8,1931, at the May term of said district court for the sum of $1,125; a certified copy of the order of the court overruling appellant’s amended motion for a new trial entered on August 31, 1931, at the same term of said court; and also a certified copy of appellant’s appeal bond which was filed in the court below on September 17, 1931; each of said certificates being made by the clerk of the district court of Bowie county, Tex. Appellant resists the granting of appellee’s motion to affirm on certificate on three grounds, viz.: (1) That the certified copies of the instruments accompanying appellee’s motion to affirm on certificate are insufficient to show jurisdiction of this court, because the pleadings of the parties are not incorporated therein; (2) that said certificates are insufficient to show the time of convening and adjournment of the May term, 1931, of the district court of Bowie county; and (3) because appellant has abandoned his appeal and has sued out a writ of error, the record of which was filed in this court on December 8,1931. The first contention of appellant cannot be sustained. The instruments accompanying appellee’s motion to affirm on certificate are deemed sufficient to show that this court has acquired jurisdiction of this cause, and therefore has the power to affirm on certificate. The contention that the motion to affirm on certificate should be denied for the reason there is nothing in the clerk’s certificate accompanying said motion to affirm on certificate to show when the May term, 1931, of the district court of Bowie county convened and adjourned is without merit. The terms of the various district courts of this state are statutory, and this court will take judicial knowledge of the beginning and length of time such term may continue. The third contention will also be overruled. The question involved was recently before the Court of Civil Appeals at Beaumont, and was there decided adversely to appellant’s contention. Young’s Bus Lines v. Giles (Tex. Civ. App.) 32 S.W.(2d) 879, and authorities there cited. Appellant’s motion to affirm on certificate will be granted.