
    ZIEGLER et al. v. HUNT.
    (No. 591-4416.)
    
    (Commission of Appeals of Texas, Section B.
    Feb. 10, 1926.)
    1. Appeal and error &wkey;>565 — Statement of facts must be first filed in trial court to be considered by Court of Civil Appeals.
    The statement of facts must be first filed in the trial court, otherwise it will not be considered by the Court of Civil Appeals.
    2. Appeal and error &wkey;>'564(3) — District court may permit filing of statement of facts after expiration of 90 days after perfecting of appeal if filing of transcript not delayed (Rev. St. 1911, arts. 1608, 2073, 2074).
    Under Rev. St. 1911, arts. 1608, 2073, 2074, district court may permit filing of statement of facts subsequent to expiration of 90 days after perfecting of appeal, if such filing does not delay filing of transcript in the Court of Civil Appeals within time prescribed by law.
    3. Appeal and error &wkey;>564(2) — Statement of facts may be filed in Court of Civil Appeals after 90 days subsequent to perfecting of appeal, where lawfully filed in district court (Rev. St. 1911, arts. 1608, 2073, 2074).
    In view of Rev. St. 1911, arts. 1608, 2073, 2074, where a statement of facts is lawfully filed in the district court, it can be filed in Court of Civil Appeals after 90 days subsequent to perfecting of appeal.
    4. Appeal and error <&wkey;985 — Discretion of district court and Court of Civil Appeals in permitting late filing of statement of facts not disturbed.
    The district court and Court of Civil Appeals being authorized to exercise their discretion in permitting filing of statements of facts after expiration of 90 days from perfecting of an appeal, Supreme Court will not disturb their action.
    Error to Court of Civil Appeals of Fourth Supreme Judicial District.
    Action by William Ziegler and others against Jesse R. Hunt. Judgment for plaintiffs was reversed and judgment rendered by the Court of Civil Appeals (271 S. W. 936), aaad plaintiffs bring error.
    Affirmed.
    McCollum Burnett, Perry J. Lewis, H. C. Carter, and Randolph Carter, all of San Antonio, for plaintiffs in error.
    Birkhead, Lang & Beckmann, Barrett & Barrett, and Hitzfield & Lynch, all of San Antonio, for defendant in error.
    
      
      Rehéaring denied March 17, 1926.
    
   POWELL, P. J.

This case is stated fully by the Court of Civil Appeals in its opinion, reported in 271 S. W. 936. We think that court has written a very able opinion on the merits of this case and correctly decided those issues. We do not think we could improve the opinion in these respects, so we content ourselves by referring to it as our answer to many of the contentions contained in the application for writ of error. We think any other conclusion would do the greatest violence to thoroughly established rules of law and justice.

The writ was granted to settle “an apparent conflict” between this decision and those of other courts upon a practice question. In this case, the statement of facts was filed in the district court three days after the expiration of 90 days after the appeal was perfected. When it was presented to counsel for plaintiffs in the district court, they refused .to approve it; but the district judge did so. He signed it and ordered it filed as a part of the record in this cause. The clerk then put. his file marks on the statement of facts.

After the statement of facts was filed in the district court on October 11, 1924, counsel for Hunt asked permission of the Court of Civil Appeals for the filing thereof, as well as the transcript, in that court. Both instruments were presented in that court at the same time, but long after the expiration of 90 days subsequent to the perfecting of the appeal. But, for what the Court of Civil Appeals deemed a good cause shown, it permitted the filing of both papers. They were filed contemporaneously by the clerk of that court on November 26, 1924. Counsel for ap-pellees in that court made a motion to strike out the statement of facts. This motion was overruled by that court without a written opinion. It is now contended that this action is in conflict with other decisions as aforesaid. Properly interpreted, we do not believe there really is any conflict, although certain language in some of the decisions of the Courts of Civil Appeals might be construed as being in conflict with this decision. This precise situation has not been before the courts heretofore.

The exact contention is that there is no authority for either the district court or the Court of Civil Appeals to permit the filing of a statement of facts later than 90 days after the perfecting of an appeal. In the first place, the statement of facts must be filed in the trial court. Otherwise, it will not be considered by the Court of Civil Appeals. This is well settled. The statute requires its filing there first. Under the law, when must it be filed in the trial court? As stated by Chief Justice Brown in the case of Heflin v. Railway Co., 155 8. W. 188, 106 Tex. 23, the only absolute limitation upon its filing by the district court is that it “shall not be so extended so as to delay the filing of the statement of facts, together with the transcript of record, in the appellate court within the time prescribed by law.” Article 2073, Revised Civil Statutes of 1911.

Article 1608, Revised Statutes of. 1911, provides when a transcript may be filed in the Court of Civil Appeals. That article reads:

“In any appeal or writ of error as provided for' in this chapter, the appellant or plaintiff in error shall file the transcript with the clerk oft the Courts of Civil Appeals within ninety days" from the performance of the appeal or service of the writ of error; provided, that, for good cause, the court may permit the transcript to be thereafter filed upon such terms as it may prescribe.”

In view of this last-quoted article of the Statutes, counsel for plaintiffs in error here admit that the Court of Civil Appeals had a right to authorize the filing of the transcript as it did. But they say this is not true' with reference to the statement of facts. This contention is made despite the fact that the filing of the transcript in the Court of Civil Appeals was not delayed by the contemporaneous filing there of the statement of facts.

So, it would seem from article 2073, read in connection with article 1608, that the district court can file a statement of facts just so long as such filing does not delay the filing of the transcript in the Court of Civil Appeals within the time prescribed by law. That time, under the statute, is indefinite and elastic. Generally, it must be within 90 days after the perfecting of an appeal. But it may be subsequent to that time. All of those conditions are prescribed in the same statute. But if there could be any doubt as to the authority of the district judge in this case, under article 2073, to file this statement of facts as he did, then article 2074, Revised Statutes of 1911, shows clearly it was the intention of our lawmakers that he should have this latitude. That article reads as follows:

“Whenever a statement of facts shall have been filed after the time prescribed by law, and the party tendering or filing the same shall show to the satisfaction of the Courts of Civil Appeals that he has used due diligence to obtain the approval and signature of the judge thereto, and to file the same within the time in this chapter prescribed for filing the same, and that his failure to file the same within said time is not due to the fault or laches of said party or his attorney, and that such failure was the result of causes beyond his control, the Courts of Civil Appeals' shall permit said statement of facts to remain as part of the record, 'and consider the same in the hearing and adjudication of said cause the same as if said statement of facts had been filed in time.”

This chapter of our statutes, from which we have just quoted, refers to practice in the district and county courts. This very article, read in connection with article 2073, shows that, so long as the Court of Civil Appeals is not delayed in filing the transcript, the trial court, for satisfactory cause, may permit the filing of a statement of facts in that court. If lawfully filed by the district court, then, unquestionably, the Court of Civil Appeals can file it late just the same as it does a transcript. This is definitely decided by Chief Justice Brown in the case of Heflin v. Railway Company, supra. In that case, the statement of facts was filed within the' 90 days in the trial court, but was not presented to the Court of Civil Appeals at Amariljo until long after the 90 days. Counsel, opposing the filing thereof in the Court of Civil Appeals, contended that there was no law authorizing the filing of the statement of facts after the 90-day period. In other words, the statement of facts was different from the transcript, which they admitted could be filed in the discretion of the court. The Court of Civil Appeals certified the question to the Supreme Court, and it was answered in the affirmative. The filing was allowed. We quote from the opinion as follows:

(1) “It will be seen that the statement of facts is made a part of the record and the only absolute limitation as to the time' of filing is ‘but the same shall not be so extended so as to delay the filing of the statement of facts, together with the transcript of record, in the appellate court within the time prescribed by law.’ Originally, the statement of facts was incorporated into the transcript, now it may be separately prepared, but it must accompany the transcript to the Court of Civil Appeals as ‘a part of the record,’ as expressed in article 2070, ‘and the original thereof (statement of facts) shall be sent up ag a part of the record in the cause on appeal.’ When the statement of facts is embraced in the transcript it is filed as a part of the record. When it is made separately from the transcript, it must go to the Court of Civil Appeals with the transcript as ‘a part of the record.’ ”
(2) “We are unable to comprehend a distinction which would excuse a failure to file the transcript, yet would not excuse a failure to file the statement of facts which is required to accompany the transcript and, as a general rule, could not be received if not in company with the transcript except by leave of the court.”
(3) “We answer the question certified that, whatever will excuse delay in filing the transcript will be sufficient to excuse the same delay as to the statement of facts, when filed in time, it being a part of the record.”

The Supreme Court authorized the filing in the Heflin Case without even resorting to article 2074, which we have heretofore quoted and which seems to us to be in point. We think that where a statement of facts is lawfully filed in the district court, it can unquestionably be filed in the Court of Civil Appeals after 90 days subsequent to the perfecting of the appeal in the district court.

As already indicated, we do not think the Court of Civil Appeals in this case is really in conflict with other courts in this state. We know it is not in conflict with any decision of our Supreme Court or either section of the Commission of Appeals. It is not in conflict, in our judgment, with any Court of Civil Appeals. We say this for the reason that those courts did not have before them the same facts which are here presented. Furthermore, this question was treated, if at all, only as obiter dicta. But even if one or two of the Courts of Civil Appeals have held to the' contrary, then we' think they were in error in so doing.

We hare before us a case where an emergency existed. The district court and Court of Civil Appeals each, in the exercise of their discretion, have filed the statement of .facts. We would not disturb this action where, as we do, we are of the view that the law authorized the exercise of this discretion on their part. We are not in sympathy with iron-bound or rigid rules of law which do not permit the courts to meet emergencies arising in the practice of the law. When left alone, the courts have always adopted elastic rules which render inequities impossible. In this instance, we think the Legislature has joined hands with the courts, by reason of .the articles already mentioned, and taken care of equities arising in emergencies. These unusual situations develop every now and then, even where men are diligent, and lawyers are required to ask relief. The courts are necessarily infinitely more concerned in the substance of the law than its mere form as related to procedure.

As said by Chief Justice Brown, there is no more reason for allowing the delayed filing of a transcript than a statement of facts. If one is permitted, the same reasons would sciem to demand the other.

We think the judgment of the Court of Civil Appeals should be affirmed. We so recommend.

CURETON, C. J.

The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court. 
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