Adams and Bray v. Bida ( 1935 )

The transcript of the record was filed in the Court of Civil Appeals on February 29, 1932, 61 days from the date of filing of the bond and petition for writ of error, but within less than 60 days from the service of the writ of error. At that time Art. 1839, as amended by the Acts. of 1931, 42nd Legislature, p. 100, ch. 66, was in effect. Under that amendment it was provided that the plaintiff in error should file the transcript with the Court of Civil Appeals within 60 days from the perfection of the writ of error.

1 The Court of Civil Appeals concluded that the writ of error was perfected when the writ of error bond was duly filed, and accordingly dismissed the proceeding for want of jurisdiction. That holding is in conflict with the opinion of this Court in the cases of Borger v. Morrow, 125 Tex. 321,82 S.W.2d 944, and Campbell v. First National Bank in Lubbock, 125 Tex. 303,82 S.W.2d 954, released on May 22d 1935, in which cases it was held that under that amendment the writ of error was perfected by the service of citation in error.

2 Art. 1728, R. S., 1925, as amended by the 40th Legislature, p. 214, ch. 144, authorizes this Court to reverse and remand a cause on the application for writ of error without the necessity of granting the writ and hearing same, if the decision of the Court of Civil Appeals is in conflict with a previous opinion of this Court. Casstevens v. Texas P. Ry. Co., 119 Tex. 456, 32 S.W.2d 637, 73 A. L. R., 89. In the instant case the decision of the Court of Civil Appeals is clearly in conflict with the previous opinions of this Court in the cases cited.

The judgment of the Court of Civil Appeals is therefore reversed and the cause is remanded to that Court for consideration on its merits.

Opinion delivered June 26, 1935.