Ramey v. Phillips

253 S.W. 323, 1923 Tex. App. LEXIS 348

• Court: Court of Appeals of Texas
• Decided: June 6, 1923
• Docket: No. 2206.
• Status: Published

Opinions

HALL, C, J.

The appellee, Phillips, sued A. T. Barney and others to recover the amount of certain vendor’s lien notes and to foreclose the lien upon lands 'described in the petition. It was contended by the defendants that one note, in the sum of $145, executed by Barney to Phillips, represented usurious interest on the original notes sued upon. By agreement of all parties in open court only one issue was submitted to the jury as follows:

“Was the note for $145 dated February 17, 1921, and which was introduced in evidence -herein, given by A. T. Rainey and received by M. D. Phillips as additional interest from said date on the three notes sued on herein.” ■

The jury answered >“No.” By agreement of parties no other issues were submitted. Judgment was rendered for Phillips for the full amount sued for, including attorney’s fees, and a foreclosure of the vendor’s lien was decreed. On December 15, 1922, Ramey and one other defendant filed a motion for new trial, which was on said date overruled. Supersedeas bond was filed January 4,-1923. Nothing further was done by Ramey and others in the matter of prosecuting the appeal; and in an effort to bring the case properly into this court. No statement of facts was ever filed, no transcript has been applied for, and -no briefs by appellant have been filed either in the court below or in this court. On the 10th day of April, after judgment, appellee applied for a transcript which was filed in this court on April 14th. As shown by the certificate of the clerk of the district court, the transcript is a full and complete transcript of all' the proceedings in the lower court. Accompanying this transcript is the motion of Phillips that the judgment of the trial court be affirmed, with .10 per cent, damages for delay.- Y. S. O. S. art. 1610, provides that, in case the appellant shall fail to file a transcript of the record, as directed in chapter 6, tit. 32, then it shall be lawful for the appellee to file with the clerk of the Court of Civil Appeals a certificate of the,.clerk of the district court, attested by the seal of the clerk of the lower court, stating the time when such appeal was perfected, whereupon it shall be the duty of the Courts of Civil Appeals to affirm the judgment of the court below unless good cause can be shown why such transcript was not filed by the appellant, and that, if a copy of the bond accompanies the certificate of the clerk of the court below, the judgment shall be affirmed against the sureties on the bond. Rule 11a for the Courts of Civil Appeals (142 S. W. xi) is as follows:

“When affirmance is asked upon certificate, there need be nothing more than a request for affirmance, signed by the party, or his counsel; but such request shall be accompanied by a transcript of the record of the proceedings in the trial court sufficient to show that such trial court had jurisdiction of the subject-matter and parties. The certificate of the clerk shall otherwise conform to the requirements of article 1610; R. S. of Texas. Such motions shall not be submitted sooner than ten days after being filed and the appellee, or defendant in error, may be heard on a motion to dismiss the certificate or on a motion to file a transcript of the record; or on a motion to set aside the judgment-rendered, as in other cases of rehearing.”

It is apparent that, under' the above-mentioned article of the statute and. rule 11a, .which we quote, in order to se.cure. an affirmance of the judgment where the appellee may be entitled to it, it is not necessary for him to file in this court a full and complete trans'cript of all the proceedings. V: S. O. S. art. 1627 (1922 Supp.), provides:

“Whenever "the Courts of Civil Appeals on the trial of cases brought from an inferior court shall affirm the judgment or decree of said inferior court, or when said court shall proceed to render such judgment or decree as should have been rendered .by the dourt below, said court shall, at the same time, render judgment against the appellant, or plaintiff in error, and the sureties on his appeal bond (a copy of which bond shall always accompany the transcript of the record) subject to such disposition as to costs on said appeal as said courts may order; and said Courts of Civil Appeals shall, in their discretion, include in said judgment or decree, such damages, not exceeding 10% of the .amount of* the original judgment, as the court may deem proper, and the judgment or decree of said courts rendered as contemplated in this article shall be final.”

Article 1629, Vernon’s Sayles’ Ann. Civ. St. 1914, provides:

“Where the court shall be of opinion that an appeal or writ of error has been taken for delay, and that there was no sufficient cause for taking such appeal, then, and in that case, the appellant or plaintiff in error, if he be the defendant in the court below, shall pay ten per cent, on the amount in dispute as damages, together with the judgment, interest and cost of suit thereon accruing.”

Under the new rules for Courts of Civil Appeals, effective September 1, 1921, it is provided by rule 39 (230 S. W. viii):

“When the appellant or plaintiff in error has failed to prepare the case for submission by the omission of what is required after bond or affidavit filed for appeal or writ of error with citation served, the appellee or defendant in error, before the call of the case, may file in the Court of Civil Appeals his brief, which the court may, in its discretion, regard as a- correct presentation of the case and upon which it may, in its discretion, affirm the judgment of the trial court, without examining the record further than to. see that the judgment is one that can be affirmed under the view presented by the ap-pellee or the defendant in error.”

New rule 39 seems to be a reconstruction of and an amendment of old rule 42 (142 S. W. xiv).

Appellee is clearly entitled to an affirmance of the judgment, below upon compliance with the provisions of Y. S. C. S. art. 1610, Court of Civil Appeals rule No. 11a, and new rule 39. V. S. C. S. art. 1608, requires the appellant to file his transcript in this court within 90 days after perfecting the appeal. Having failed to file his transcript within the time limit, we think, under the authorities hereinafter cited, the appellee had the right to filo a complete transcript, and move not only for an affirmance of the judgment on certificate, but at the same time to move under V. S. O. S. art. 1629, supra, for an award of 10 per cent, damages for delay. If appellee had filed a transcript and a motion to affirm on certificate under V. S. O. S. art. 1610, before the expiration of the 90 days in which appellant might have filed .a transcript, his motion would have been denied as having been prematurely filed. Simmang v. Smith (Tex. Civ. App.) 150 S. W. 494; Morris v. Anderson (Tex. Civ. App.) 147 S. W. 367; Moore v. Hitchler, 16 Tex. Civ. App. 44, 40 S. W. 197; Bartley v. Robinson (Tex. Civ. App.) 161 S. W. 386; Fontana v. Reed Grocery Co. (Tex. Civ. App.) 208 S. W. 933.

Appellee is not attempting to appeal from the trial court’s judgment because he is dissatisfied with the result in that court. Appellant appealed, and, by complying with the terms of Y. S. C. S. arts. 2084, 2099, and 2101, has given this court jurisdiction of the ease. By the filing of his motion and brief in this court appellee seeks, first, the affirmance of the trial court’s judgment, and, second, 10 per cent, damages for the frivolous appeal. His motion for 10 per cent, damages under article 1629 requires us to review the entire record, which appellee has filed in this court to enable us to do so. Before the court rules were amended old rule 43 for the Courts of Civil Appeals (142 S. W. xiv) provided for the submission of the ease upon a record by appellee, and upon suggestion of delay Courts of Civil Appeals were authorized to assess 10 per cent, damages. Old rule 43 was not included in the new rules which became effective September 1, 1921. Therefore, that branch of the appellee’s motion in which he seeks damages, must be governed by V. S. C. S. art. 1627 or article 1629. From the wording of article 1627 as amended (V. S. C. S., Supp. 1922) it may be inferred that it refers only to cases brought from inferior courts and standing regularly for trial upon the dockets of the Courts of Civil Appeals. We think, however, that article 1629, which also provides for 10 per cent, damages for delay, applies to cases where an appeal or writ of error has been taken, and where the appellant has done nothing toward having his case submitted in this court further than giving notice of appeal and filing his appeal or supersedeas bond in the trial court in accordance with articles 2084, 2099 and 2101. Unless this was the legislative intent, then no reason can be assigned for the existence of articles 1627 and 1629, both providing for 10 per cent, damages. When the appellant gave notice of appeal and filed his supersedeas bond in the court below the jurisdiction of this court attached for all practical purposes. Pleasants, Justice, said in Houston, B. & T. Ry. Co. v. Hornberger (Tex. Civ. App.) 141 S. W. 312:

“The perfection of the appeal by the filing of the supersedeas bond conferred upon this court complete and active jurisdiction of the.subject-matter of the suit and of the parties in their relation to such matter so long as the appeal may be pending in this court.”

This holding was approved by the Supreme Court in the same case. 106 Tex. 104, 157 S. W. 744. Levy, J., in an exhaustive discussion of many cases, declared the result of the preliminary steps necessary to perfect the appeal in Gordon v. Rhodes et al. (Tex. Civ. App.) 104 S. W. 786, as follows:

“Under the statutes * * * an appeal is held to have been perfected when taken during the term of the court at which the final judgment in the cause is rendered, and by the giving notice of appeal in open court within 2. days after final judgment, or 2 days after judgment overruling a motion for a new trial, which shall be noted on the docket and entered of record, and by his filing with the clerk an appeal bond, where bond is required by law. ⅜ * * After the appeal is thus perfected, then the trial court loses its power in respect to those things which might trench in the appellate functions, and the jurisdictions of the Court of Civil Appeals attaches. [Citing statute and authorities.] So, by reason of and under this statute, in any case where appeal is allowable, after the giving of the notice of appeal in open court and filing the bond, the ease is an appealed case. As soon as the case was tried in the district court below, the potential jurisdiction conferred upon the Courts of Civil Appeals was waiting to be called into active exercise. A case cannot be appealed until tried in an inferior court. * * * The active jurisdiction of the Court of Civil Appeals is called into exercise, and. actually applied, when the parties of the particular case do or perform some act in the particular case under authority of law. Townes on Texas Pleading, p. 23. The giving of the notice of appeal in term timé of the. court, and entering it of record, is an act of the parties in the particular case (Executors of Lockhart V. Lockhart, 1 Tex. 199), as is likewise the giving of an appeal bond (Burr-v. Lewis, 6 Tex. 80). The term, as used in the statute, ‘the appeal is held to have been perfected,’ referring to the giving of the notice of appeal in term time and filing the bond, means that the removal of a cause from an inferior to a superior court is brought to consummation or completeness. * * * It is plain and clear that the practical idea of the term ‘appeal is perfected’ is that the act of the parties in the particular case, by giving notice of the appeal and filing the appeal bond, have completely lodged appellate jurisdiction of the action in the Courts of Civil Appeals. Nothing further is left to be done by the parties to the particular cause to give active jurisdiction or power to hear and review the action of the trial court. It follows, therefore, that the active jurisdiction in the particular case for all purposes attached to the Courts of Civil Appeals when' the appeal was perfected. [Citing authorities.]”

Judge Levy further says in the same case:

“On the 9th of July, 1907, the active jurisdiction of the Court of Civil Appeals for the Eifth District attached over this appeal, and then awaited the exercise of that active jurisdiction when the transcript of the record of this cause and the briefs should, in the time prescribed by law, be filed and docketed therein; or, in the event of the failure of the appellants to thus prosecute the appeal, the appellees could call into exercise that jurisdiction in the manner authorized by law, or obtain a finality of the appeal as prescribed by law. * * * The appeal is ‘pending’ when undecided. * * * So would this case be ‘pending’ as well as after the appeal is perfected as required by law as if the transcript was on the docket and unsub-mitted for review. Piling the transcript is not the act that gives appellate jurisdiction to the Court of Civil Appeals. ■* * * The purpose of the transcript of the record of the cause is to bring the matter of review before the court 'as to the subject-matter therein to be revised.”

If the appellee in the instant case wanted only an affirmance of the. judgment he was not required to file. a full and complete transcript of the proceedings in the lower court. Article 1610, supra; Court of Civil Appeals rule 11a. Neither expressly nor by implication is he prohibited from filing a complete transcript where only an affirmance is requested. Where damages for delay are sought a complete transcript is required in order that this court may determine whether or not the appeal was perfected simply for delay. The case of Granberry v. Jackson, 62 Tex. Civ. App. 597, 132 S. W. 508, is in all respects like the case before us. The plaintiffs in error perfected their appeal by suing out a writ of error, filing a supersedeas bond, and having citation issued and served. They filed no assignments of error and took no steps toward having a transcript prepared and filed in the Court of Civil Appeals. Thereafter the defendant in error filed a transcript, and prayed, as in this case, that the judgment below be affirmed, with 10 per cent, damages for frivolous appeal. In disposing of the motion Judge Pleasants said:

“Upon this state of the record it'is apparent that the writ of error was sued out solely for delay, and defendant in error is entitled to have the judgment of the court below affirmed, with 10 per cent, damages. * * ⅜ Defendant in error had the right under the rules to have the transcript brought up, * * * and while he may have left the bringing up of, the transcript to plaintiffs in error, and, in case they failed to prosecute their writ of error by filing the transcript in the time required by the statute, have sought and obtained an affirmance on certificate, and thus prevented a large part of the delay, caused him in the enforcement of his judgment, he was not required to take this course. The suing out of the writ of error without probable ground of error, and the filing of a supersedeas bond by plaintiffs in error, thereby suspending the execution of the judgment, having been done for the sole purpose of delay, defendant in error became entitled to his damages, and the fact that he might by a different proceeding.have secured a more prompt enforcement of his judgment cannot defeat his right to recover the damages awarded him by the statute for the misuse by plaintiffs in error of their right of appeal. Damages for delay could be awarded on a motion to affirm on certificate, but in such ease the entire record should be brought up. If a transcript of the entire proceedings is not brought up, the appellate court cannot know that the appeal is taken merely for delay, and in such case could not affirm the judgment of the court below, with damages.”

The motion to affirm and to assess damages was granted. The right of appellees to both an affirmance upon certificate and 10 per cent, damages for delay when his motion is accompanied by a complete transcript has been recognized frequently by qur courts. Broocks v. Guilmartin (Tex. Civ. App.) 175 S. W. 794; Ernst v. Anheuser-Busch Brewing Association (Tex. Civ. App.) 26 S. W. 457; Silliman v. Dickson et ux., 68 Tex. 623, 5 S. W. 408; Simmang v. Smith, supra; Goode v. Carrell (Tex. Civ. App.) 34 S. W. 350; Adams v. Jordan (Tex. Civ. App.) 136 S. W. 499; Burr v. Lewis, 6 Tex. 76; Marx v. Brown, 42 Tex. 111; Grier v. Powell, 14 Tex. 321. There seems to be no question as to the right of the appellee to damages for frivolous appeal where the appellant, after perfecting the appeal, files a transcript in this court. Article 1627. We think article 1629 was intended by the Legislature to confer the same right upon appellee where the appellant does nothing after perfecting his appeal toward submitting the case in this court. According to the above authorities we think he clearly has the right, not only to move for an affirmance of the judgment, but to bring a complete transcript into this court, and, if the record authorizes it, to move for an affirmance with damages for delay.

The motion is therefore granted, and the judgment is affirmed, with 10 per cent, damages.