
    BROWN v. HOOKS.
    (No. 995-4862.)
    Commission of Appeals of Texas, Section A.
    Nov. 2, 1927.
    1. Appeal and error <&wkey;l 127 — Jurisdiction of Court of Civil Appeals to affirm on certificate for appellant’s failure to tile transcript held not dependent on showing of trial court’s jurisdiction (Rev. St. 1925, art. 1841).
    Jurisdiction of Court of Civil Appeals to grant motion to affirm on certificate under Rev. St. 1925, art. 1841, where appellant failed to file transcript, helé not dependent on showing in certificate of trial court’s jurisdiction of the case.
    2. Appeal and error <&wkey;l 127 — Appellate court’s jurisdiction in proceeding for affirmance on certificate is not determined by amount of recovery (Rev. St. 1925, art. 1841).
    Amount of recovery in judgment is not test of appellate court’s jurisdiction in proceeding for affirmance on certificate under Rev. St. 1925, art. 1841, any more than amount of recovery would show trial court’s jurisdiction.
    3. Courts <&wkey;i78 — Rule-making power of Supreme Court does not extend to modification of courts’ jurisdiction as fixed by lav/ (Const, art. 5, § 25; Rev. St. 1925, art. 1731).
    Scope of authority of Supreme Court under Const, art. 5, § 25, and Rev. St. 1925, art. 1731, giving Supreme Court power to make and establish rules of procedure not inconsistent with state laws, does not extend to modification of jurisdiction of any court as it is fixed by statute or Constitution.
    4. Appeal and error. <&wkey;1127 — Rule making jurisdiction of Court of Civil Appeals to grant affirmance on certificate dependent on showing of trial court’s jurisdiction, held, inoperative (Rule I la of Supreme Court; Const, art. 5, § 25; Rev. St. 1925, arts. 1731, 1841).
    Rule 11a of the Supreme Court for the Court of Civil Appeals, providing request for affirmance upon certificate shall be accompanied by transcript sufficient to show jurisdiction of trial court, held inoperative to require showing of jurisdiction, under Oonst. art. 5, § 25, Rev. St. 1925, art. 1731, in view of article 1841 giving jurisdiction to Court of Civil Appeals in such cases without requirement that jurisdiction of trial court be shown.
    Certified Questions from Court of Civil Appeals of First Supreme Judicial District.
    Action by Cliff P. Brown against Mrs. A. D. Hooks. Judgment for defendant, and, on plaintiff’s appeal, defendant files a motion for affirmance on the certificate under Rev. St. 1925, art. 1841. On questions certified from the Court of Civil Appeals.
    Questions answered.
    Heidingsfelder, Kahn & Branch and Samuel Schwartz, all of Houston, for appellant.
    Woods, John & Cox, of Houston, for ap-pellee.
   HARVEY, P. J.

Certified questions from the Court of Civil Appeals for the First district. The material parts of the certificate are as follows:

“In a suit brought by appellant against ap-pellee in a district court of Harris county, judgment was rendered in favor of appellee that appellant take nothing by his suit, and that appellee recover of appellant all costs of the suit.
“This judgment was rendered on July 6, 1926. Appellant excepted to the judgment, gave notice of appeal to this court, and perfected his appeal by filing an appeal bond on July 27, 1926.
“No transcript in the case having been filed, the appellee, on November 5, 1926, filed a motion for affirmance on certificate under the provisions of article 1841, Revised Statutes 1925. Accompanying the motion there is a certificate of the clerk of the trial court showing ‘the time when and how the appeal was perfected.’ This certificate contains a copy of the judgment and of the appeal bond filed by appellant, and shows the dates on which the term of the trial court began and ended and the dates on which the judgment was rendered and the appeal bond filed. The certificate does not affirmatively show that the suit was one of which the trial court had jurisdiction. * * *
“At a former day of this term, following the case of Dandridge v. Masterson, 105 Tex. 511, 152 S. W. 166, we overruled appellant’s exceptions to the certificate and granted the motion to affirm. A motion for rehearing is now pending before us, and, in view of a conflict between our holding, refusing to dismiss the certificate, and the holding by other Courts of Civil Appeals in the cases of Bird v. Lester, 163 S. W. 658, and Frazier v. Coombs, 251 S. W. 820, we respectfully certify for your decision the following questions;
“(1) Does the jurisdiction of this court to grant a motion to affirm on certificate depend upon an affirmative showing by the certificate that the trial court had jurisdiction of the case?
“(2) Is rule 11a for the Courts of Civil Appeals, in so far as it adds to the provisions of article 1841, Revised Statutes, prescribing what shall be shown in the certificate accompanying a motion to affirm for failure to perfect an appeal, a valid exercise by the Supreme Court of the authority given that court by the statute to promulgate rules for the Courts of Civil Appeals? ”

The provisions of article 1841 of the Revised Civil Statutes, so far as relevant, read as follows:

“If the appellant or plaintiff in error shall fail to file a transcript of the record, as directed in this chapter, then the appellee or defendant in error, may file with the clerk of said court a certificate of the clerk of the district or county court in which such appeal or writ of error may have been taken, attested by the seal of his court, stating the time when and how such appeal was perfected or such citation was served; whereupon the Court of Civil Appeals shall affirm the judgment of the court below, unless good cause can be shown why such transcript was not so filed.”

That jurisdiction in a proceeding under this statute does not depend upon a showing of the trial court’s jurisdiction in the case is definitely settled by the decision in the case of Dandridge v. Masterson, 105 Tex. 513, 152 S. W. 166. Whether the judgment thus sought to be affirmed is or is not for the recovery of a given sum is a matter of no importance in determining the jurisdiction of the appellate court. For the amount of recovery in the judgment is no more a test of the appellate court’s jurisdiction in this proceeding than it is of the trial court’s jurisdiction to render the judgment.

This brings us to a consideraton of the second question that is certified. Rule 11a, as promulgated by the Supreme Court for Courts of Civil Appeáls, reads in part as follows:

“When affirmance is asked upon certificate filed, 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.” ,

Authority to promulgate rules of court is conferred upon the Supreme Court, by section 25 of article 5 of the Constitution, in the following words:

“The Supreme Court shall have power to make and establish rules of procedure, not inconsistent with the laws of the state, for the government of said court and the other courts of this state, to expedite the dispatch of business therein.”

The scope of authority of the Supreme Court under this constitutional provision does not include the modification of the jurisdiction of any court as it is fixed by statute or by the Constitution. Nor does article 1731 of the Statutes purport to confer authority in that respect.

In so far, then, as the above rule of court should be construed as undertaking to make the jurisdiction of the Court of Civil Appeals in a proceeding under the statute above quoted depend upon an affirmative showing of jurisdiction in the trial court to render the judgment sought to be affirmed, the rule, to that extent, would be “inconsistent with the laws of- the state,” and therefore inoperative.

The above court rule was promulgated by the Supreme Court on January 24, 1912, and was therefore in existence on December 23, 1912, when the decision in the case of Dandridge v. Masterson, supra, was made. It is to be assumed that the court in rendering such decision did not regard the rule as militating against their holding in that case.

We recommend that both certified questions be answered “No.”

CURETON, C. J.

The opinion of the Commission of Appeals answering the certified questions is adopted and ordered certified. 
      &wkey;For other cases see same topic and KEY-NUMBER. in all Key-Numbered Digests and Indexes
     