Long v. Martin

247 S.W. 827, 112 Tex. 365, 1923 Tex. LEXIS 103

• Court: Texas Supreme Court
• Decided: January 31, 1923
• Docket: No. 3715.
• Status: Published

Opinion

Mr. Justice GREENWOOD

delivered the opinion of the court.

The Court of Civil Appeals affirmed the judgment of the trial court in this case on the 25th day of May, 1921, and overruled a motion for rehearing on October 12, 1921. On the thirty-first day thereafter, on November, 12, 1921, the petition for writ of error was filed by the Clerk of the Court of Civil Appeals.

Plaintiffs in error seek to sustain this court’s jurisdiction to review the judgment of the Court of Civil Appeals, on a petition filed after the lapse of more than thirty days from the overruling of the motion for rehearing on the following grounds:

First: That the order overruling the motion for rehearing was not actually entered in the minutes of the Court of Civil Appeals until less than thirty days before November 12, 1921.

Second: That the Governor of Texas having designated November 11, 1921 as a holiday by a proclamation issued November 8, 1921, it ought to be excluded in computing the thirty days allowed for the filing of the petition for writ of error.

Third: That plaintiffs in error and their counsel used due diligence to file the petition for writ of error within thirty days from the date on which the motion for rehearing was overruled.

Notwithstanding the facts disclose that the order overruling the motion for rehearing was not entered until two or three days after its rendition, and that the Governor designated as a holiday the last day allowed for the filing of the petition for writ of error, and that counsel for plaintiffs in error used the utmost diligence to file the petition in time, yet we have no jurisdiction to review the judgment of the Court of Civil Appeals.

As repeatedly announced, a judgment of the Court of Civil Appeals is not subject to review through the exercise of the appellate jurisdiction of the Supreme Court whenever thirty days elapse subsequent to the rendition of such judgment without the actual lodgment of a petition for writ of error with the Clerk of the Court of Civil Appeals. Schleicher v. Runge, 90 Texas, 456, 39 S. W., 279; Vinson v. Carter & Bro., 106 Texas, 273, 166 S. W., 363; Henningsmeyer v. Bank, 109 Texas, 116, 195 S. W., 1137, 201 S. W., 662; Flattery v. Miller, 212 S. W., 932.

■ In the case of Schleicher v. Runge, supra, the parties expressly stipulated in writing that the delay in filing the petition for writ of error was without • fault on the part of the applicant, and the defendant in error consented that the petition might be treated as having been- filed in due time. It was nevertheless determined that the delay was fatal to the -exercise of jurisdiction by the Supreme Court.

The failure of the Clerk of the Court of Civil Appeals to enter the order overruling the motion for rehearing for a few days is of no avail to extend the time for presenting the petition for writ of error. That order was rightly entered as of the day when it was pronounced. Rule 65 for the Courts of Civil Appeals makes it the clerk’s duty to give immediate notice by postal card upon the rendition of a judgment overruling a motion for rehearing, and further provides that even failure to receive the notice shall be no excuse for failure. to take such future action as. may he desired in reference to the case 1 ‘within the time prescribed by the statutes and rules.”

The holiday cannot be excluded in computing the thirty days for filing the petition. Hanover Fire Ins. Co. v. Shrader & Rogers, 89 Texas, 35, 30 L. R. A., 498, 59 Am. St., 25, 32 S. W., 872, 33 S. W., 112.

It is therefore ordered that the writ of error and the petition therefor be dismissed for want of jurisdiction.

Dismissed for want of jurisdiction.