H. & T. C. R. W. Co. v. Greenwood , 40 Tex. 361 ( 1874 )

Roberts, Chief Justice.

A judgment of affirmance is asked on the above transcript of the judgment, appeal bond, and certificate of clerk, under the statute, which reads as follows: “In case the appellant or plaintiff in error shall fail to file a transcript of the record, as directed in the two preceding sections, then it shall be lawful for the appellee or defendant in error to file with the clerk of the Supreme Court a certificate of the clerk of the district in which any such appeal or writ of error may have been taken, attested by the seal of his court, and stating the time when such appeal was perfected or such citation was served; whereupon it shall be the duty of the Supreme Court to affirm the judgment of the court below, unless good cause be shown why such transcript was not filed by the appellant or plaintiff in error; and in cases where a bond has been given by the appellant or plaintiff in error, if a copy of such bond accompanies such certificate of the clerk, the judgment shall in like manner be affirmed against the sureties in such bond.” (Paschal’s Digest, Art. 1589.)

It will be perceived that this transcript sets forth the judgment, the appeal bond in proper form, and the certificate of the clerk “ that the appeal was perfected in said cause on the twenty-seventh of November, 1873,” in exact conformity to the statute above quoted.

The certificate recites that, notice of appeal was given, but the transcript does not contain a copy of the notice of appeal as it is recorded in the minutes of the court, and the question is, is that necessary to give this court jurisdiction, when the clerk has properly stated in the certificate the time when the appeal was perfected, as it has been done in this case ? The question is not, must notice of appeal be given? — for that is well established — but, how is that fact, which is of record in the court below, to be made known to this court ? In an able and elaborate opinion delivered by Justice Gray (who is not now on the bench), it was stated that it should be made known to this court by a copy of the notice of appeal, inserted in- the transcript just as it stands on the minutes of the court, and also by the certificate of the clerk, strictly in conformity to Article 1589, above quoted, stating the time when the appeal was perfected. (House & Co. v. Burnett, ante, 346.) It was not necessary to have gone to that extent in that case, as there was no such copy of notice of appeal, nor a proper certificate from which the court could be informed of that fact, necessary to the jurisdiction of the court. Since the decision in that case, a large number of cases have been sent up to this court for affirmance on certificate, in none of which does the transcript contain a copy of the entry of notice of appeal, and in most of them that fact is evidenced by the statement in the certificate of the clerk, that “the appeal has been perfected” at a stated time. This has led to a more thorough examination into the cases decided upon certificate, including many unpublished cases extending back as far as 1851, shortly after the passage of the law authorizing this proceeding by certificate. In some of them the transcript contains a copy of the notice of appeal; in others not. But when it does, it does not also contain the statement in the certificate of the clerk that the appeal has been perfected. In the cases brought up by writ of error, the transcript rarely is found to. contain the petition or citation in error, which are equally important to give this court jurisdiction, as notice of appeal; but their existence in the case is made known to this court by the statement of the clerk in the certificate, that “ the citation has been served” on the defendant in error, as required in the statute. If it be held that a copy of the notice of appeal must appear in the transcript in an appeal case, it should likewise be held that the petition in error, the citation, and return of the sheriff thereon, should be copied into the transcript. And in the few cases found where that has been done, the clerk has not in 'addition thereto certified that “the citation has been served.” It is found, through a long period, that the court has assumed jurisdiction when the transcript of the récord showed copies of such entries as in and of themselves exhibited the facts necessary, and also when it contained copies of the judgment (and bond when necessary) and a certificate that the appeal was perfected, just as the transcript has been made out and sent up in this case.

The opinion referred to states, “that there must be a certified transcript of the judgment and notice of appeal, and that the certificate of the clerk should state, in the «exact terms of the statute, when the appeal or writ of error was perfected.” This, when applied literally, might be construed to require the exact compliance with the statute in the certificate of the clerk, stating that ‘' the appeal had been perfected,” in cases wdiere copies of such proceedings appeared in the transcript, sufficient to give this court jurisdiction, as a certified copy of the judgment, of notice of appeal, and of an. appeal bond filed .and approved within the twenty days, after judgment, etc. Also, that it required less to be shown in a writ of terror than in an appeal. After a full consideration of the subject practically, and in view of a long line of precedents with but little variation for more than twenty years under that statute, it is deemed appropriate to state the rule, as we now understand it to be, that in order to give this court jurisdiction in cases of appeal brought up on certificate, whenever the transcript does not contain copies of the proceedings sufficient in and of themselves to show that this court has jurisdiction of the case, then the .transcript must at least contain a copy of the judgment and a certificate of the clerk stating the “time when the appeal was perfected;” and in cases of writ of error, stating “the time when the citation in error was served”, on the defendant, or service of it acknowledged or waived, in substantial compliance with the statute previously quoted, upon which this proceeding is found. Under this rule the transcript, presenting as it does a copy of' the judgment, and of the appeal bond, and a certificate of the clerk stating that 11 the appeal was perfected in said cause on the twenty-seventh day of November, 1873” (according to the terms of the statute), is sufficient, as it has often been before held, to authorize a judgment of affirmance by this court.

Affirmed.

Opinion delivered July 14, 1874, and directed to be reported in connection with the foregoing case of House & Co. v. Burnett.