Goldberg v. Spense

TIREY, Justice. This case is before this court on motion of appellees to affirm on certificate because of the failure of appellant to file transcript within the time provided by law. Appel-lees’ motion is subscribed and sworn to and in connection with said motion he has filed certified copy of the judgment entered by the court, together with certified copy of the supersedeas bond filed by the appellant. It appears that final judgment was entered in this cause in the court below on the 16th of January, 1947, and that appellant’s motion for new trial was overruled on February 8, 1947, and that appellant duly filed his supersedeas bond on the 28th day of February, 1947, which was duly approved by the Clerk of the District Court of Mc-Lennan County. Under Rule 386, Texas Rules of Civil Procedure as amended by order of October 10, 1945, the sixty days therein provided for filing transcript and statement of facts expired on April 9, 1947, and no motion for extension of time in which to file same has been filed in this court, as may be done under the provisions of said Article. It follows that the time within which the transcript should have been filed in the Court of Civil Appeals has long since expired. Appellees filed their motion to affirm on certificate on May 26, 1947, and it appearing to the court that the ten day notice provided for under Rule 387, T.R.C.P., has been given in this cause and this motion set for hearing on June 12, 1947, it follows, under the provisions of said Rule 387, that appellees are entitled to have the judgment of the trial court affirmed. See Texas State Life Ins. Co. v. Daiches, Tex.Civ.App., 149 S.W.2d 172, and authorities therein cited. Appellees’ motion to affirm on certificate is granted and the judgment of the trial court is affirmed as provided in Rule 387, aforesaid.