Margaret E. Welch et al. v. V. Weiss, 99 Tex. 356

GAINES, Chief Justice. This case comes to us upon a certified question. The statement and question certified are as follows: "On the 12th day of July, 1904, in a suit in trespass to try title brought by appellants against appellee the district court rendered a judgment that the plaintiffs therein take nothing by the suit. “From that judgment the plaintiffs duly perfected this appeal returnable to the last term of this court. "They failed, however, to file the transcript in this court within the time prescribed by law, wherefore they presented a motion to file, setting up certain facts in excuse of the delay.

This court at the last term held the excuse insufficient and refused to allow the filing of the transcript. That matter was finally disposed of at the last term of this court. The final order therein was entered December 21, 1904. “The plaintiffs thereupon perfected a writ of error to this court and duly filed the record herein on May 6, 1905, and the cause was duly placed upon the docket of this court. “On May 19, 1905, the appellee asked in due form that the judgment be affirmed on certificate because the appeal had been abandoned.

This court, without knowledge of the pendency of the writ of error here, affirmed the judgment as requested. "The appellee thereafter moved to dismiss the writ of error. The plaintiffs in error resisted the motion and also moved for rehearing in the matter of the affirmance on certificate. We were requested to consolidate the motions and hear them together, which we did. These motions were passed to this term and upon hearing the writ of error was dismissed and the judgment of affirmance allowed to stand. The views of this court were then for the first time embodied in a written opinion. (13 Texas Ct.

Rep., 792). “Appellants contend that our holding is in direct conflict with Anderson v. Waco State Bank, decided by the Court of Civil Appeals of the Third District and reported in 47 S. W., 552, and for the reason ask that we certify the question. “In this case we held that the appellants did not voluntarily abandon their appeal and while we held the reasons for failure to file the transcript insufficient, we were of opinion there was no fraud and no purpose to delay appellee. We concluded in effect, however, that in view of the case of Scottish U. Ins. Co. v.

Clancey, 91 Texas, 467, it was immaterial whether the failure to file the transcript in time was through accident or design and that the character of the judgment appealed from was immaterial. That if for any reason the appellant having perfected his appeal lost the right to file his transcript in the appellate court the right of appellee to an affirmance on certificate became absolute if urged during the term to which the appeal was returnable. “The case of Anderson v.

Waco State Bank, supra, was decided after the decision of Clancey’s case, supra, and is apparently in conflict with our construction of that opinion. In view of the rule announced in Sullivan v. Ins. Co., 89 Texas, 667, and McCurdy v. Connor, 95 Texas 246, we feel constrained to certify the question. We therefore respectfully ask: “Did we err in holding, under the facts stated, that appellee was entitled to his affirmance on certificate?” We answer that the Court of Civil Appeals did not err in its ruling.

As grounds for our conclusion we need only to refer to the very satisfactory opinion of Chief Justice Gill, as reported in the 13th Texas Court Eeporter on page 792 (40 Texas Civ. App..), which we adopt.