Earnest v. Couch , 1934 Tex. App. LEXIS 498 ( 1934 )

On Motion for Rehearing.

We adhere to the ruling that as service of writ of error was sought to be effected through the individual drainage commissioners, it was necessary that each such commissioners be served.

The statute (article 8174) provides that drainage districts may be sued “through their commissioners.” That does not mean through one commissioner, or two, but all three, commissioners. The same rule would apply, as a matter of course, to service of writ of error. And such service must be upon commissioners in office at the time of service, not former .commissioners.

Plaintiff in error complains that the order heretofore entered herein, to strike this cause from the docket of this court, has the effect of ■cutting off plaintiff in error from his remedy of writ of error. In this plaintiff is mistaken. To dismiss the appeal would have the effect feared by plaintiff in error, whereas, to strike the case' from the docket, without prejudice, as has been done here, is designed to save plaintiff in error’s remedy, if otherwise properly pursued. We again commend to plaintiff in error the authorities cited in the original opinion upon this point. Vineyard v. McCombs, 100 Tex. 318, 99 S. W. 544; Brazell v. Irene Independent School Dist. (Tex. Civ. App.) 279 S. W. 871.

We note the district clerk’s certificate to the transcript filed in this appeal, as follows:

“The State of Texas, County of Hidalgo

“I, L. C. Lemen, Clerk of the District Courts within and for the County of Hidalgo, State of Texas, do hereby certify that the within and foregoing 82 typewritten pages are a true and correct copy of all the proceedings had and done in Cause No. B-9633, styled, D. C. Earnest vs. E. C. Couch, et al., as the same now appear on file and of record in this office.

“I further certify that the Pleading appearing herein on pages 46 to 49 inclusive, called plaintiff’s Second Supplemental Petition, is incorporated in this Transcript from what purports to be a copy of this pleading presented to me by Counsel for Plaintiff after said cause was finally tried and final judgment was rendered therein, and after said counsel had stated that said copy was from the files of said counsel for plaintiff, and that the original of said pleading had been lost. And, with a request that said copy be filed as of June 21st, 1933, the date of said trial, I accordingly filed said pleading and dated same back to show it was filed on June 21, 1933.

“Given under my hand and the seal of the District Courts of Hidalgo County, Texas, this the 14th day of February, A. D. 1934.

“L. C. Lemen, Clerk, District Courts, Hidalgo County, Texas.”

It is perfectly obvious that under the facts certified the clerk had no authority to include in the transcript the purported copy of “Plaintiff’s Second Supplemental Petition.” Clerks of trial courts have no authority to substitute lpst papers in a case. That can be done only in the manner’prescribed in the statute. Article 2289, R. S. 1925.

Plaintiff in error’s motion for rehearing is overruled.