
    BARRERA v. DUVAL COUNTY RANCH CO.
    Nos. 13558, 13562.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 21, 1939.
    Whipple & Rabel, of San Antonio, and William R. Quilliam, of Hebbronville, for appellant.
    Perkins & Floyd and Frank T. Morrill, all of Alice, for appellee.
   MURRAY, Justice.

It appears that the transcript in this case was tendered to this Court for filing on January 27, 1939, within the enlarged time for such filing, but that same was not filed at that time as it was discovered that the clerk’s certificate was defective. The transcript was withdrawn by appellant for the purpose of having the certificate corrected, and out of an abundance of precaution a motion for a further extension of time was filed.

The transcript has been returned to this Court with a correct certificate and it is our opinion that it should be filed as of the date it was originally tendered to this Court. Under the circumstances and the conclusion we have reached, no further extension of time is necessary.

Appellee has filed a motion opposing appellant’s request for a further extension of time, and in the alternative asking that certain affidavits contained in the transcript be stricken and, further in the alternative, for leave to file affidavits in reply to affidavits filed by appellant.

The transcript shows that appellant filed a by-stander’s bill of exception, signed by A. G. Hinojosa, Manuel P. Corrales, and William Stansel on January 10, 1939. Thereafter, on January 25, 1939,' appellant filed with the district clerk three affidavits, one signed by Mateo de los Santos, one, by Ernest Tibblier, and the other, by Manuel Solis. These affidavits were filed in support of appellant’s by-stander’s bill of exception.

Section 9 of Art. 2237, Vernon’s Annotated Revised Civil Statutes, 1938, Volume 7, provides, in effect, that where a by-stander’s bill of exception is filed, the truth of the matter contained in the bill may be controverted and maintained by affidavits, not exceeding five in number on each side, to be filed with the papers of the cause, within ten days after the filing of the bill of exception. It is clear that the three affidavits above were not filed within the ten-day period, and. therefore should not have been tendered by the clerk of the trial court, nor included in the transcript by him.

Accordingly, these three affidavits will be stricken from the record.  