Mary Freeman v. Collier Racket Company, 101 Tex. 60

Mr. Justice Brown delivered the opinion of the court. Certified question from the Court of Civil Appeals for the First District, as follows: “This cause is pending before us on appeal. The transcript was filed in this court by appellant on the 19th day of February, 1906. The statutory time within which the transcript could have been filed without excuse duly made for delay expired on the 9th day of March, 1906. “This cause was submitted upon briefs and oral argument for both parties on the 35th day of October, 1906.

We reversed the judgment of the trial court on the 8th day of November, 1906, and rendered judgment for appellant. • “The appellees in due time filed a motion for rehearing which was duly submitted on the 5th day of December, 1906. Pending the motion we certified for your decision the • controlling question in the case.

That question has been answered and the answer certified to this court. “On April 34, 1907, the appellees filed a motion to dismiss the appeal on the ground that the clerk’s certificate to the transcript was a nullity because it did not certify that the transcript contained all the proceedings had in the cause in the court below. “The certificate in question is as follows: “ ‘The State of Texas,) County of Galveston, j “ ‘I, J. C.

Gengler, Clerk of the District Court of and for the County of Galveston, State of Texas, do hereby certify that the foregoing 43 pages contain a true and correct transcript of all certain proceedings had in said court in cause numbered 35499, entitled Mary Freeman, plaintiff, v. The Collier Racket Company et al., defendants, as all the same appear on file and of record in my office.’ “It is dated February 16, 1906, and is duly signed and sealed by J. C.

Gengler as clerk of the court. “The original _ as it appears in the transcript was written on a printed form which as printed is in strict compliance with the statute and rule.

At the point where the printed form reads, “all the proceedings” the clerk ran his pen through the word “the” and interlined the word “certain” so that the certificate was made to read as the copy above indicated. “In reply to the motion to dismiss the appellant offers the affidavit of the district clerk to the effect that he changed the printed form in the respect indicated because the transcript of the official stenographer was a part of the proceedings in the court below, but was not embodied and could not be legally embodied fin the clerk’s transcript, and therefore he could n'ot truthfully certify that his transcript contained all the proceedings had in the court below, and that by the language used in his certificate he intended to certify that his transcript contained all the proceedings which he could lawfully embody therein. “On November 22, 1906, appellees suggested a diminution of the record and applied for a writ of certiorari from which and the agreement of counsel for appellant it appeared that certain special charges requested by appellees and refused by the trial court had not been embodied in the clerk’s transcript. “The only reason assigned for dismissal is the alleged defect in the clerk’s certificate, and thereunder the contention is made that in the absence of a proper certificate the transcript before us is a nullity and that this court had no* jurisdiction to render judgment herein and has no right to further consider this appeal. “Upon the facts stated we respectfully certify for your decision. “First.

Is the clerk’s certificate to the transcript valid? “Second. If you answer that it is invalid, should the appeal be dismissed or has this court the discretion to allow the transcript to be withdrawn and the certificate amended? “Third. If the certificate is invalid, has the defect been waived by the failure of appellees to sooner move to dismiss? "“Fourth. Should the motion for any reason be sustained? “Because in many cases on our docket the transcripts are in like condition as to the clerk’s certificate and because-we are not inclined to follow the case of Railway Company v. Brown, 83 S.

W., 28, decided by the Court of Civil Appeals of the Third District, holding the matter jurisdictional, we deem it wise to certify for your decision the foregoing questions.” To the above questions we answer that the jurisdiction of the Court of Civil Appeals does not depend upon the character of the certificate of the clerk to the transcript. If the transcript be not certified or if' the certificate be defective, upon motion seasonably made, the court might dismiss the case. Watts v. Overstreet, 78 Texas, 571.

The motion in this case being filed after the Court of Civil Appeals had rendered its judgment, came too late and should not be sustained.