Commercial State Bank v. Blackwell , 1933 Tex. App. LEXIS 862 ( 1933 )

COMBS, Justice.

On June 15, 1932, the record in this case was mailed by appellant's counsel to the clerk of this court and same was received’by the clerk on June 16, 1932, as shown by his notation thereon. However, the clerk declined to file the record for the reason that judgment overruling the motion for new trial appearing in the transcript was dated April 15, 1932, and it, therefore, appeared that the record had reached our court sixty-two days after the motion for new trial was overruled. On June 20, 1932, appellant filed a motion requesting that we direct the clerk to file the record, and the motion was granted.

In its motion appellant represents that, while the judgment overruling its motion for new trial is dated April 15, 1932, that being the date it was pronounced by the trial court, that in fact that judgment was not actually entered on the minutes until April 26, 1932. The motion is supported by affidavit of the clerk of the district court made June 17, 1932, to the effect that the order overruling the motion for new trial was handed to him April 15, 1932, and that it remained in his office and in hi's custody until the 20th day of April, 1932, when it was by him entered ■and spread upon the minutes. Attorneys for appellees filed motion to strike the record, insisting that it did not reach this court in time. This motion was taken with the case. They attached an affidavit from the district clerk dated June SO, 1932, in which he states that:

“Affiant’s records show that the judgment overruling the motion for new trial was entered in the minutes of the district court of Nacogdoches County, Yol. X, pages 144 and 145 Apr. 15, 1932, as shown by motion docket dated as overruled.

“That affiant heretofore signed the paper prepared by the defendant’s attorney without giving same careful consideration and did not know or notice the date used in said instrument.”

The sixty days allowed by article 1839, R. S., as amended by Acts 1931, c. 66, § 1 (Yernon’s Ann. Civ. St. art. 1839), for filing the record in the Court of Civil Appeals, dates from the time the order overruling the motion for new trial is entered on the minutes and not from the date it was pronounced. It was so held by the Dallas Court of Civil Appeals in the case of Hamilton Motor Co. v. Muckleroy, 46 S.W.(2d) 451, Judge Looney, in the opinion, citing a number of cases in support of the decision. We agree with this holding of the Dallas Court of Civil Appeals on that question.

The two affidavits of the clerk throw much doubt on the question of when- the order overruling the motion for new trial was actually entered. His first one states positively that he entered it on April 20, 1932. If this, is correct, then the record reached this court fifty-seven days aftel’ward and was within time. But in his second affidavit he says that “his records show” it was entered in the minutes April 15, 1932, “as shown by motion docket dated as overruled.” He nowhere states that the order was actually entered on April 15th or that it was not entered on April 20th, as his first affidavit states that it was, nor does he state that, he has no recollection of when it was entered. This being the state of the record, it is our duty to resolve any doubt in favor of our jurisdiction. Hamilton Motor Co. v. Muckleroy, supra. The motion to strike is overruled.

On Motion to Strike Statement of Facts.

Appellee seasonably filed a motion to strike out the statement of facts on the ground of alleged failure of appellant to comply with the provisions of article 2238, R. S. 1925, as amended by Acts of the Forty-Second Legislature (1931), First Called Session, p. 75, c. 34, § 2 (Vernon’s Ann. Civ. St. art. 2238). Appellees’ main contention is that notice of the filing of the court reporter’s transcript of the evidence with the district clerk was not served upon them or their counsel.

The statement of facts is in proper form, certified to by the court reporter, and approved by the trial judge. It is signed by attorneys for appellant, but appellees’ attorneys did not sign it. Instead they signed the following statement: “The statement of facts tendqred us, consisting of 99 pages, June 13, 1932, and without waiving any rights and decline to examine it to determine whether we can approve it, until the provisions of the statute have been, followed.”

It thus appears that the statement of facts was tendered to counsel for appellees for their examination and approval and that they declined to examine it. It is not contended that the statement of facts is incomplete or inaccurate. We recently had before us a similar question in the case of Texas & N. O. R. Co. v. Davis, 60 S.W.(2d) 505. Here, as in that case, we decline to strike out the statement of facts on the showing made. The motion is overruled.