Savage v. State , 67 Tex. Crim. 360 ( 1912 )

Appellants have made a motion for rehearing in this cause and for permission to now file a transcript herein. This motion was filed in this court June 19, 1912.

Article 1016, Revised Civil Statutes, provides that where the appellant has failed to file the transcript of the record within the ninety days prescribed by law and the appellee has properly filed in this court a certificate of that fact, as was fully done in this cause, it shall be the duty of the court to affirm the judgment, "unless good cause can be shown why such transcript was not filed by the appellant." In this case no showing whatever was made or attempted to be made in this court before this judgment was properly affirmed on the said certificate.

Article 1017, Revised Civil Statutes, prescribes that, even after the Appellate Court has affirmed the judgment of the court below on such certificate, said court may at any time within fifteen days after such affirmance, permit the transcript to be filed and the case tried on its merits, "provided that appellant shall show to the court good cause why the transcript was not filed by him in accordance with the provisions of article 1015," etc.

Appellants' only showing of why they now seek, at this late date, to file this transcript is wholly insufficient to justify or authorize the court to permit it to be done. They show simply this: That on October 30, 1911, from Amarillo, which is only fifty miles distant by rail from Tulia, the county seat of Swisher County, they sent to the clerk of Swisher County the appeal bond herein, and that they then asked him to make up the transcript as soon as convenient. The clerk received this bond and filed it on October 31, 1911, and on the same date wrote to appellants' attorneys who were attending to the matter for them, that he had received, approved and filed said appeal bond and that they would have to return to him the papers in the cause before he could make up the transcript and stated that while he was very busy then in the County Court, he would get someone else to make it up for them and would expect them to pay therefor. They did not reply to this letter of the clerk until November 8, 1911, when they stated therein that they forwarded to him the papers in this cause. It is then shown that they did nothing else whatever and had no communication with the clerk thereabouts until on February 2, 1912 — the time for filing the transcript in this court having expired on January 29, four days before asking about the transcript in this case — stating to the clerk that the time was about to expire and they must insist upon getting the transcript at once. The transcript which they now offer to file shows to be only about twenty-three pages of typewritten matter, which, of course, could easily and readily be prepared at any time within one day, and it also shows that it was delivered to them on February 8, 1912. They claim that as they lived fifty miles from Tulia that they had to depend upon the clerk making out the transcript and getting to them the record.

Even after getting the record, as is without question shown, on February 8, 1912, they made no effort whatever to then file it in this court and made no motion whatever to file it herein, although they had, by their own showing, from February 8, 1912, till the judgment was affirmed on certificate in this court on June 5, 1912. Instead of showing a good cause why the transcript was not filed originally within the ninety days, and without showing any good cause why the transcript should now be permitted to be filed, the very reverse of this is clearly and without question shown. Continental Fire Association v. Stillwell Bros., 63 S.W. 950 (95 Tex. 676); Glavaecke v. Delmas, 13 Tex. 495; Williams v. Walker, 33 S.W. 556; Faux v. La Maire, 77 S.W. 439; San Antonio v. Smith, 65 S.W. 41 (95 Tex. 675); Reynolds v. Dechaumes, 22 Tex. 116 [22 Tex. 116]; Hoefling v. Esser, 46 S.W. 294 (93 Tex. 709 [93 Tex. 709]); Wandelcher v. Grayson County Bank,90 S.W. 186; Welch v. Weiss, 99 Tex. 356; Scottish Union etc. v. Clancey, 91 Tex. 467; Davidson v. Ikard,86 Tex. 67. It is unnecessary to multiply authorities.

The motion for rehearing and to now file a transcript will be denied.

Overruled.