National Indemnity Underwriters of America v. Cherry

On Motion to Affirm on Certificate.

NEALON, Chief Justice.

A motion to affirm on certificate has been filed by defendants in error upon the ground that the transcript was filed in this court more than 60 days subsequent to the perfecting of the writ of error.' The motion is based upon the following facts: Judgment was rendered in favor of defendants in error and against plaintiff in error October 16,1936; petition for writ of error was filed in the office of the district clerk January 7, 1937; a bond in proper form, styled “Su-persedeas and Writ of Error Bond,” was lodged with the district clerk January 7, 1937, and the following notation made thereon by the clerk, “The foregoing bond received the 7th day of January, A. D. 1937, but said bond is neither approved nor disapproved pending requested information in regard to the worth of the sureties”; said bond was later approved and “refiled” on February 22, 1937; counsel for defendants in error signed a waiver of citation January 11, 1937; the waiver was filed March 11, 1937; the transcript and statement of facts were filed in this court on April 10, 1937.

We cannot agree with the contention of defendants in error that the signing of the waiver perfected the writ of error. Article 2267 of the Revised Civil Statute reads: “When the bond, or affidavit in lieu thereof, provided for in the two preceding articles, has been filed and the previous requirements o.f this chapter have been complied with, the appeal or writ of error, as the case may be, shall be held to be perfected.” ■

Article 2265, one of “the two -preceding” articles, requires that a bond “to be approved” by the clerk shall he filed as one of the steps in the process, of perfecting the writ of error. Within sixty days after the bond was approved the record was filed in this court. This was in time. Houston & T. C. R. Co. v. Smith (Tex.Civ.App.) 97 S.W. 519.

As an added precaution plaintiff in error thereafter on April 26,1937, caused citation in error to issue. It was later served, and plaintiff in error filed a motion to refile the transcript subsequent to said service.

We think the waiver was sufficient, and was effective, though executed before the writ of error was perfected. Nothing is to be accomplished by putting additional file marks upon the transcript and statement of facts. The motion of plaintiff in error to this effect is overruled, as is the motion to affirm filed by defendant in error.