Biffle v. Morton Rubber Industries, Inc.

Texas Supreme Court

Biffle v. Morton Rubber Industries, Inc.

785 S.W.2d 143, 1990 WL 14978

CourtTexas Supreme Court

DecidedApril 5, 1990

DocketC-9470

StatusPublished

Cited by36 cases

This text of 785 S.W.2d 143 (Biffle v. Morton Rubber Industries, Inc.) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Biffle v. Morton Rubber Industries, Inc., 785 S.W.2d 143, 1990 WL 14978 (Tex. 1990).

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Opinion

PER CURIAM.

The issue in this case is whether a cost bond should be considered as timely filed when delivered to the clerk before the deadline for perfecting an appeal but *144 where the clerk inadvertently failed to file-mark it until after the deadline. Morris Biffle appealed from a judgment rendered against him. On November 6, 1989, the last day for filing a cost bond for his appeal, Biffle both had the bond delivered to the county clerk and verified its receipt by telephone. The deputy clerk, by signed affidavit, affirms that the bond was timely received. Although the bond was filed with the clerk on that date, it was forwarded to the trial judge’s office and was not filemarked until November 9. The court of appeals dismissed the appeal for failure to timely file the cost bond.

An instrument is deemed in law filed at the time it is delivered to the clerk, regardless of whether the instrument is filemarked. Standard Fire Ins. Co. v. LaCoke, 585 S.W.2d 678, 680 (Tex.1979); Hanover Fire Ins. Co. v. Shrader, 89 Tex. 35, 42, 33 S.W. 112, 113 (1895); Turner v. State, 41 Tex. 549, 552 (1874); Holman v. Chevaillier, 14 Tex. 337, 339-40 (1855); Beal v. Alexander, 6 Tex. 531, 541 (1855). The purpose of this rule is to protect a diligent party from being penalized by the errors and omissions of the court clerk. Standard Fire Ins. Co., 585 S.W.2d at 680. Since Biffle satisfied his duty to file timely the cost bond, he should not be penalized for an error once the instrument was in the custody and control of the clerk.

Because the court of appeals’ opinion conflicts with the foregoing decisions of this Court, we grant the application for writ of error and, without hearing oral argument, a majority of the court reverses the judgment of the court of appeals and remands this cause to that court for further proceedings consistent with this opinion. See Tex.R.App.P. 133(b).

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PER CURIAM.

The issue in this case is whether a cost bond should be considered as timely filed when delivered to the clerk before the deadline for perfecting an appeal but *144 where the clerk inadvertently failed to file-mark it until after the deadline. Morris Biffle appealed from a judgment rendered against him. On November 6, 1989, the last day for filing a cost bond for his appeal, Biffle both had the bond delivered to the county clerk and verified its receipt by telephone. The deputy clerk, by signed affidavit, affirms that the bond was timely received. Although the bond was filed with the clerk on that date, it was forwarded to the trial judge’s office and was not filemarked until November 9. The court of appeals dismissed the appeal for failure to timely file the cost bond.

An instrument is deemed in law filed at the time it is delivered to the clerk, regardless of whether the instrument is filemarked. Standard Fire Ins. Co. v. LaCoke, 585 S.W.2d 678, 680 (Tex.1979); Hanover Fire Ins. Co. v. Shrader, 89 Tex. 35, 42, 33 S.W. 112, 113 (1895); Turner v. State, 41 Tex. 549, 552 (1874); Holman v. Chevaillier, 14 Tex. 337, 339-40 (1855); Beal v. Alexander, 6 Tex. 531, 541 (1855). The purpose of this rule is to protect a diligent party from being penalized by the errors and omissions of the court clerk. Standard Fire Ins. Co., 585 S.W.2d at 680. Since Biffle satisfied his duty to file timely the cost bond, he should not be penalized for an error once the instrument was in the custody and control of the clerk.

Because the court of appeals’ opinion conflicts with the foregoing decisions of this Court, we grant the application for writ of error and, without hearing oral argument, a majority of the court reverses the judgment of the court of appeals and remands this cause to that court for further proceedings consistent with this opinion. See Tex.R.App.P. 133(b).

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785 S.W.2d 143, 1990 WL 14978, Counsel Stack Legal Research, https://law.counselstack.com/opinion/biffle-v-morton-rubber-industries-inc-tex-1990.

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