International Security Life Insurance Co. v. Riley , 1969 Tex. App. LEXIS 2402 ( 1969 )

441 S.W.2d 858 (1969)

INTERNATIONAL SECURITY LIFE INSURANCE COMPANY, Appellant,
v.
Joyce E. RILEY, Appellee.

No. 7952.

Court of Civil Appeals of Texas, Amarillo.

March 3, 1969. Rehearing Denied April 7, 1969.

Huffaker & Green, Tahoka, Gerald Huffaker, Tahoka, of counsel, for Joyce E. Riley on motion to affirm on certificate.

Gillespie & McClendon, Lubbock, William J. Gillespie, Lubbock, of counsel, for International Security Life Ins. Co., on motion to affirm on certificate.

PER CURIAM.

Final judgment was rendered in this cause on October 31, 1968. Appellant's motion to vacate or set aside the default judgment was overruled by the trial court on November 13, 1968, and notice of appeal was given on that date. Appellant's appeal bond and supersedeas bond were filed and approved on November 22, 1968. No transcript or statement of facts have been filed in this Court, nor has appellant filed a motion for an extension of time within the prescribed time to do so under Rule 386, Texas Rules of Civil Procedure.

On January 31, 1969, appellant filed its Petition for Writ of Error in the trial court. When an appellant, after giving notice of appeal and filing an appeal bond, fails to timely file the transcript in the Court of Civil Appeals and abandons such proceedings, and then attempts to prosecute an appeal by writ of error, the Court of Civil Appeals shall, upon a timely filed motion, affirm upon certificate. Jarrell v. Farmers' & Merchants' State Bond Bank, 128 Tex. 332, 99 S.W.2d 281; Douglas v. Douglas (Tex.Civ.App.) 167 S.W.2d 774. Appellee has timely filed her motion to affirm on certificate under Rule 387, Texas Rules of Civil Procedure. Under this record the appellee's right to an affirmance of the judgment on certificate is absolute.

Affirmed on certificate.