BARROW, Justice.
Domingo R. Pompa Benavides and Concepcion Arredondo de Benavides filed in this Court on September 8, 1959, a motion seeking thirty days additional time within which to file their transcript and statement of facts in this Court. The majority of this Court have granted said motion, without written opinion, but in view of the fact that Chief Justice Murray has prepared a vigorous dissenting opinion, we feel constrained to issue an opinion presenting our views in the matter.
The motion and agreement of counsel are copied in the dissenting opinion and will only be referred to here. The affidavit of the court reporter filed with the motion is as follows:
“No. 4188
“Georgie Harrison et vir vs. Domingo R. Pompa Benavides et ux
In the District Court 81st Judicial District LaSalle County, Texas
“The State of Texas'
County of Bexar
“I, John Waide, Official Court Reporter, 81st Judicial District of Texas, do hereby certify I, in my official capacity as above, reported in shorthand the testimony and proceedings had in connection therewith in the trial of the above entitled and numbered cause, same being on the 22nd day of June, 1959; that on the 11th day of August, 1959, I received a request from Mr. James Haynes, Jr., Laredo, Texas, attorney for the defendant herein, for a statement of facts covering said trial; that since said time, due to other official business, I have been unable to complete such statement of facts before August 26, 1959; that within thirty days after said August 26, 1959, I will be able to so complete same.
“(signed) John Waide
“Subscribed and sworn to before me this 21st day of August, 1959.
“(signed) Rudolph Obregon
Notary Public
“(Seal) Bexar County, Texas”
Rule 386, Texas Rules of Civil Procedure, reads as follows:
“Time to File Transcript and Statement of Facts. In appeal or writ of error the appellant shall file the transcript and statement of facts with the clerk of the Court of Civil Appeals within sixty days from the rendition of the final judgment or order overruling motion for new trial, or perfection of writ of error; provided, by motion [612]*612filed before, at, or within a reasonable time, not exceeding fifteen days after the expiration of such sixty-day period, showing good cause to have 'existed within such sixty-day period why said transcript and statement of facts could not be so filed, the Court of Civil Appeals may permit the same to' be thereafter filed upon such terms as it shall prescribe.”
The motion asserts that it is filed within the time required by said rule. It gives a reason why the record could not be filed in the trial court. As we 'interpret the motion it shows that an extension of time was granted by the trial court, as required by Rule 381, T.R.C.P.
The affidavit of the court reporter, filed with and in support of the motion, shows that he, as Official Court Reporter of the 81st Judicial District of Texas, in the District Court of La Salle County, reported the proceedings in the trial of this cause in said court on the 22d day of June, 1959; that on August 11, 1959, he received a request from appellants’ attorney for a statement of facts covering said trial; that due to other official business, he had been unable to complete said statement of facts before August 26, 1959, but would be able to do so within thirty days thereafter.
We agree that ordinarily, as a matter of practice, the record before us should show the date of the judgment, because it is from that which we can determine whether or not the motion is timely filed, but we do not agree that such other matters as are detailed and set out in the dissenting opinion are either essential or jurisdictional, so long as the motion is filed on time and shows “good cause.”
It may be inferred from the affidavit of the Court Reporter that the judgment was signed June 27, 1959 (sixty days prior to August 26, 1959). But, in any event, it could not have been signed or rendered prior to June 22, 1959, because the case was tried on that date. In either event, the motion was filed within the time required by the rule.
The record shows that the case was tried in one day, and presumably the statement of facts could have been prepared within two or three days after the order was given to the reporter, at least it could have been prepared well within the time allowed for filing in this Court, had it not been for other official business of the reporter.
In our opinion, the question of determining jurisdiction falls in three categories: (1) Where the record has not been filed in this Court within sixty days from the date of judgment and no motion is filed within seventy-five days, or a motion having been granted, the record is not filed within the time allowed under the terms of the order; (2) where the motion, together with the affidavits, shows on the face of the record that the transcript and/or statement of facts, as the case may be, could have been filed within the time allowed by the rule, and thus the motion is insufficient as a matter of law; (3) where the record has not been filed within the sixty-day period provided by Rule 386, T.R.C.P., but a motion has been timely filed which attempts to show “good cause” why the record could not be filed within the sixty-day period, thus presenting a fact issue to be determined by the Court of Civil Appeals.
The first two categories present jurisdictional questions. The Court does not have jurisdiction of the case where the record is not filed within the time allowed by the rule. The Supreme Court has passed on the second class in Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587; and the Austin Court of Civil Appeals, in Ortiz v. Associated Employers Lloyds, 294 S.W.2d 880. In each of these cases the facts showed that the record was in fact completed and ready for filing before the expiration of the sixty-day period. The Courts held, as a matter of law, that the record failed to show that the record could not have been filed in time.
In the third category a question of fact is presented. The question of “good cause” is an ultimate' issue of fact for the determination of the Court of Civil Appeals. [613]*613The Amarillo Court of Civil Appeals, in Bradshaw v. Bradshaw, 187 S.W.2d 688, 689, has well stated the rule to be followed by the Court in passing on this question:
“According to the interpretation given to Rule 386 by the Supreme Court, appellant is charged with the duty of making some sort of showing as to why the record was not presented for filing by the clerk of this court within the sixty days and is charged with the duty of furnishing satisfactory proof to this court that the delay was excusable. Otherwise, an order by this court authorizing the record to be filed would be an arbitrary act by this court.”
We believe the record in this case measures up to the test.
Free access — add to your briefcase to read the full text and ask questions with AI
BARROW, Justice.
Domingo R. Pompa Benavides and Concepcion Arredondo de Benavides filed in this Court on September 8, 1959, a motion seeking thirty days additional time within which to file their transcript and statement of facts in this Court. The majority of this Court have granted said motion, without written opinion, but in view of the fact that Chief Justice Murray has prepared a vigorous dissenting opinion, we feel constrained to issue an opinion presenting our views in the matter.
The motion and agreement of counsel are copied in the dissenting opinion and will only be referred to here. The affidavit of the court reporter filed with the motion is as follows:
“No. 4188
“Georgie Harrison et vir vs. Domingo R. Pompa Benavides et ux
In the District Court 81st Judicial District LaSalle County, Texas
“The State of Texas'
County of Bexar
“I, John Waide, Official Court Reporter, 81st Judicial District of Texas, do hereby certify I, in my official capacity as above, reported in shorthand the testimony and proceedings had in connection therewith in the trial of the above entitled and numbered cause, same being on the 22nd day of June, 1959; that on the 11th day of August, 1959, I received a request from Mr. James Haynes, Jr., Laredo, Texas, attorney for the defendant herein, for a statement of facts covering said trial; that since said time, due to other official business, I have been unable to complete such statement of facts before August 26, 1959; that within thirty days after said August 26, 1959, I will be able to so complete same.
“(signed) John Waide
“Subscribed and sworn to before me this 21st day of August, 1959.
“(signed) Rudolph Obregon
Notary Public
“(Seal) Bexar County, Texas”
Rule 386, Texas Rules of Civil Procedure, reads as follows:
“Time to File Transcript and Statement of Facts. In appeal or writ of error the appellant shall file the transcript and statement of facts with the clerk of the Court of Civil Appeals within sixty days from the rendition of the final judgment or order overruling motion for new trial, or perfection of writ of error; provided, by motion [612]*612filed before, at, or within a reasonable time, not exceeding fifteen days after the expiration of such sixty-day period, showing good cause to have 'existed within such sixty-day period why said transcript and statement of facts could not be so filed, the Court of Civil Appeals may permit the same to' be thereafter filed upon such terms as it shall prescribe.”
The motion asserts that it is filed within the time required by said rule. It gives a reason why the record could not be filed in the trial court. As we 'interpret the motion it shows that an extension of time was granted by the trial court, as required by Rule 381, T.R.C.P.
The affidavit of the court reporter, filed with and in support of the motion, shows that he, as Official Court Reporter of the 81st Judicial District of Texas, in the District Court of La Salle County, reported the proceedings in the trial of this cause in said court on the 22d day of June, 1959; that on August 11, 1959, he received a request from appellants’ attorney for a statement of facts covering said trial; that due to other official business, he had been unable to complete said statement of facts before August 26, 1959, but would be able to do so within thirty days thereafter.
We agree that ordinarily, as a matter of practice, the record before us should show the date of the judgment, because it is from that which we can determine whether or not the motion is timely filed, but we do not agree that such other matters as are detailed and set out in the dissenting opinion are either essential or jurisdictional, so long as the motion is filed on time and shows “good cause.”
It may be inferred from the affidavit of the Court Reporter that the judgment was signed June 27, 1959 (sixty days prior to August 26, 1959). But, in any event, it could not have been signed or rendered prior to June 22, 1959, because the case was tried on that date. In either event, the motion was filed within the time required by the rule.
The record shows that the case was tried in one day, and presumably the statement of facts could have been prepared within two or three days after the order was given to the reporter, at least it could have been prepared well within the time allowed for filing in this Court, had it not been for other official business of the reporter.
In our opinion, the question of determining jurisdiction falls in three categories: (1) Where the record has not been filed in this Court within sixty days from the date of judgment and no motion is filed within seventy-five days, or a motion having been granted, the record is not filed within the time allowed under the terms of the order; (2) where the motion, together with the affidavits, shows on the face of the record that the transcript and/or statement of facts, as the case may be, could have been filed within the time allowed by the rule, and thus the motion is insufficient as a matter of law; (3) where the record has not been filed within the sixty-day period provided by Rule 386, T.R.C.P., but a motion has been timely filed which attempts to show “good cause” why the record could not be filed within the sixty-day period, thus presenting a fact issue to be determined by the Court of Civil Appeals.
The first two categories present jurisdictional questions. The Court does not have jurisdiction of the case where the record is not filed within the time allowed by the rule. The Supreme Court has passed on the second class in Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587; and the Austin Court of Civil Appeals, in Ortiz v. Associated Employers Lloyds, 294 S.W.2d 880. In each of these cases the facts showed that the record was in fact completed and ready for filing before the expiration of the sixty-day period. The Courts held, as a matter of law, that the record failed to show that the record could not have been filed in time.
In the third category a question of fact is presented. The question of “good cause” is an ultimate' issue of fact for the determination of the Court of Civil Appeals. [613]*613The Amarillo Court of Civil Appeals, in Bradshaw v. Bradshaw, 187 S.W.2d 688, 689, has well stated the rule to be followed by the Court in passing on this question:
“According to the interpretation given to Rule 386 by the Supreme Court, appellant is charged with the duty of making some sort of showing as to why the record was not presented for filing by the clerk of this court within the sixty days and is charged with the duty of furnishing satisfactory proof to this court that the delay was excusable. Otherwise, an order by this court authorizing the record to be filed would be an arbitrary act by this court.”
We believe the record in this case measures up to the test. It shows that appellants requested the court reporter to prepare the statement of facts in sufficient time for him to have done so well within the sixty-day period, and that the reason why the reporter could not do so was “due to other official business.”
We do not believe that the expression “good cause” why the record could not have been filed in time requires that appellant show an utter impossibility. We have been unable to find any authority for such a drastic requirement. It requires him to show that the delay was excusable in the light of the particular facts and attending circumstances.
We are not to be understood as holding that jurisdiction of the Court can be conferred by agreement of counsel, and we do not so hold. But we do believe that the agreement of appellee can be considered along with other facts. When the appellee, the party who is entitled to oppose the motion and who is entitled to a speedy enforcement of his judgment, agrees to the motion, it is at least a concession that the motion is not merely a delaying action on the part of appellant.
The right to an appeal is a valuable right and should not be denied on mere technical grounds. The motion is granted.