Herd v. Home Nat. Bank of Cleburne ( 1926 )

I regret that I cannot agree with my associates in dismissing this cause for lack of an appeal bond. I agree with them that the appellate court can hear affidavits to determine its jurisdiction. As I understand the decisions, a clerk is not and should not be permitted by an ex parte affidavit to impeach his own records. Gibson v. Singer Sewing Machine Co. (Tex.Civ.App.) 145 S.W. 633; Sumrall v. Russell (Tex.Civ.App.)262 S.W. 507; Davis v. Finch (Tex.Civ.App.) 236 S.W. 775; Brown v. Boles (Tex.Civ.App.) 52 S.W. 120; Willis v. Smith, 90 Tex. 635, 40 S.W. 401. It has been uniformly held that the verdict of a jury cannot be impeached by the testimony of the jurors themselves. Ellis v. Ponton, 32 Tex. 434; Galloway v. Floyd, 36 Tex. Civ. App. 379, 81 S.W. 805; St. L. S.W. Ry. Co. v. Gentry (Tex.Civ.App.) 98 S.W. 226; Willingham v. Brown (Tex.Civ.App.) 163 S.W. 107. Articles 358 and 359 of the Criminal Statutes (Penal Code) provide for penalties where a clerk does give false certificates. The only evidence we have in this court is given by the clerk himself. He prepared and certified to the transcript on July 31, 1925, which shows that he filed and approved the appeal bond on May 20, 1925. He made an affidavit eight months thereafter, which is copied in the majority opinion, to the effect that neither his file mark on the appeal bond nor his certificate to the transcript was true. In order that the appellant might not be, without any fault of his, deprived of his right of appeal, I think the original certificate and filing as made by the clerk should control, rather than his affidavit. I think the court should believe the original record as made by the clerk rather than his affidavit made eight months thereafter. The same rule and reason for not permitting a juror to impeach his verdict should apply to a clerk's records.

I think the motion to dismiss should be overruled.