Zarate v. Cantu

MOURSUND, J.

A motion has been filed to dismiss the writ of error based upon two grounds: First, failure to file petition for writ of error within statutory period; and, second, failure to file briefs.

[1 ] In this case a judgment was entered on October 24, 1916, which was corrected on April 16, 1917. These judgments disposed of the rights of the parties and appointed commissioners to partition the land in accordance with the provisions of the judgment. It is well settled, that such judgments are final and appealable. Waters Pierce Oil Co. v. State, 107 Tex. 1, 106 S. W. 326, and cases cited. The petition for writ of error was filed August 22, 1920, more than 12 months after the date of either of the judgments mentioned.

[2] The judgment approving the report of the commissioners was rendered on October 22, 1918. The Legislature, by chapter 85, Acts Reg. Sess. 36th Leg., reduced the time for suing out writs of error to 6 months, and applying the rule announced in the case of Odum v. Garner, 86 Tex. 374, 25 S. W. 18, for computing time in cases decided before the law was changed, we find that the petition was filed too late to procure a revision of said judgment of October 22, 1918.

It is stated in the answer to the motion to dismiss, which answer was filed on the day the case was submitted, that the petition and bond were mailed to the clerk from San Antonio on August 11, 1919, and should have reached him on August 12, 1919, and that therefore the file mark of August 22, 1919, is due to a mistake of the clerk. As the file mark showing the date of filing to have been August 22, 1919, appears three times, once on the petition and twice on the bond, it is evident that the discrepancy cannot be accounted for on the ground that a clerical error was made in making such, notation or in copying the same into the transcript. In passing on this matter we must therefore accept the transcript as showing the correct date. It seems improbable, in view of the three notations, that the petition and bond reached, the clerk prior to the date stated by him, but any mistake with reference to the record as it exists in the clerk’s office could only have been corrected in the trial court.

[3] The motion to dismiss is also well taken in so far as reliance is piaced upon the ground of want of prosecution. No briefs had been filed at the time the case was submitted, and no sufficient excuse for such failure was shown.

We conclude that both grounds of the motion are well taken, and it is therefore granted, and the writ of error dismissed.

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