
    TEXAS PORTLAND CEMENT CO. v. LUMPAROFF et al.
    (No. 7965.)
    (Court of Civil Appeals of Texas. Dallas.
    June 15, 1918.)
    1. Appeal and Ebbob ¡§=569(2) — Record— Statement op Facts — Requisites.
    Statement of facts prepared under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2070, by the official stenographer must be approved by the trial judge and will not be considered unless so approved.
    2. Appeal and Ebbob ¡§=627(3) — Aefibmance on Cebtieioate — When Pbopee.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1610, providing for affirmance on certificate when the appellant fails to file a transcript of the record_¡__the only ground upon which there may be an affirmance on certificate is that specified in the statute.
    3. Appeal and Ebbob <§=555 — Aeeibmance on Cebtieioate — When Peopeb.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1610, the appellee is not entitled to affirmance on certificate merely because the statement of facts is stricken from the record.
    4. Appeal and Ebbob ¡§=627(3) — Aeeibmance on Cebtieicatei — When Pbopee.
    Where the appellant, after perfecting his appeal by filing and having approved a bond, neglects to file transcript, the appellee may during the term of court to which the appeal is taken have the case affirmed on certificate, even though the appellant has by writ of error removed the proceeding to the appellate court and filed his transcript within the prescribed time.
    5. Appeal and Ebbob <§=776 — Dismissal by Pabty.
    Where the judgment appealed from was favorable to appellee, the appellant had the inherent right to dismiss the appeal.
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.
    Action by Naiden P. Lumparoff and others against the Texas Portland Cement Company. Judgment on verdict for plaintiffs, and defendant appeals. The appeal was dismissed, and defendant brought error.
    Dismissed.
    Coke & Coke, of Dallas, for appellant. Mc-Cutcheon & Church, of Dallas, for appellees.
   RASBURY, J.

This is an appeal from a judgment entered upon a special jury verdict awarding appellees damages for depreciation in value of their property and physical discomforts in its use and occupancy due to the operation by appellant of a cement factory adjacent to appellees’ property. Prior to the submission of the case several preliminary matters were presented to and acted upon by this court, culminating in a dismissal. of the appeal by appellant. For the purpose of placing bur action in those matters on record the dismissal of the appeal was set aside and the case regularly submitted. Affecting our action in the respect stated the record discloses the following facts transpiring during the present term of court: A transcript and statement of facts on appeal were filed in this court within 90 days after appeal was perfected. While the statement of facts contained an agreement by counsel that it was a true and correct statement of all facts proven upon trial, it was not approved by the trial judge, and was for that reason upon motion of appellee stricken from the record. Accompanying the motion to strike out the statement of facts was one to affirm on certificate on the ground that proper statement of facts had not been filed and fundamental error was not disclosed. This motion was overruled. Subsequently appellant filed motion to dismiss its appeal, which was sustained. Thereafter appellee filed motion to set aside the order of dismissal and to affirm on certificate on the ground that the appeal was taken for delay or in the alternative to set the case down for submission. The dismissal was set aside, the motion to affirm on certificate was overruled, and the cause submitted for the purpose already stated. Pending the proceedings recited appellant brought the case to this court by writ of error.

First. We struck out the statement of facts because it was not approved by the trial judge. It was prepared under the provisions of article 2070, Vernon’s Sayles’ Civil Statutes by the official stenographer. AVhen so prepared it must be approved by the trial judge, and until so approved it is not obviously a legal .statement of facts. The requirement is sufficient reason for holding the statement insufficient.

Second. We overruled both motions of appellee to affirm on certificate on the ground that that character of affirmance or remedy is available only when the appellant fails to file a transcript of the record within 99 days after the appeal is perfected. The precise provision of article 1610, Vernon’s Sayles’ Civil Statutes, conferring the remedy is that affirmance on certificate may be had in case appellant “shall fail to file a transcript of the record” in compliance with the other provisions of the law, that is, within 99 days after appeal is perfected. We have shown that the transcript was filed within that period. In fact, the right to an affirmance is not claimed on the ground that the transcript was not filed in the time fixed by law, but, in truth, on the ground that the striking out of the statement of facts entitled appellees to that remedy. We think not. In cases where the appellant, after perfecting his appeal by filing and having approved a bond, neglects to file transcript, it is the settled rule that the appellee may during the term of court to which the appeal is taken have the case affirmed on certificate, even though the appellant has by writ of error removed the proceeding to the appellate court and filed his transcript within the prescribed time. For, while it is true that there is no prohibition against a litigant availing himself of both appeal and writ of error within tlie period of limitation provided by law (Eppstein & Co. v. Holmes & Crain, 64 Tex. 560), it is also true that the right to the successive appeals is subject to tlie right of ap-pellee to have the case affirmed on certificate (Scottish Union & Nat. Ins. Co. v. Clancy, 91 Tex. 467, 44 S. W. 482). Yet it is further apparent from the statute that the right to affirm on certificate depends alone upon the failure to file transcript, and cannot be grounded upon other defects in the record, even defects warranting a dismissal of the appeal. Failure to file transcript alone gives rise to the remedy. It occurs to us that the present matter is analogous to those cases holding that appellee is not entitled to an affirmance on certificate when the transcript was filed within time, but the appeal dismissed for failure to file briefs in time, or for other conceivable defects. Gulf, C. & S. F. Ry. Co. v. Hall, 76 S. W. 590; Santle-ben v. Richter, 126 S. W. 926. The holdings in the cases cited are grounded on the bare fact that transcript had been filed and that affirmance on certificate was authorized only in cases where the transcript had not been filed. The holding conforms to article 1610, supra, and no other intention can be gathered from its provisions. It cannot be said that the article expressly or by implication confers any greater right. In fact, it must affirmatively appear from the record that the transcript was not filed before we can affirm on certificate. The record here affirmatively discloses that the transcript was filed within the time required by law. As a consequence the right to that remedy has never accrued.

Third. We permitted appellant to dismiss its appeal on the ground that it had the inherent right to do so and because we think no complaint on the part of appellees could be fairly urged to such a course, since the judgment from which the appeal was taken was in their favor.

For the reasons stated, the order setting aside the dismissal will be set aside, and appeal will be dismissed in' accordance with appellant’s motion in that respect. In such connection we are not to be understood as anticipating or passing pro or con upon any of the issues of procedure which may arise in any manner in the appeal which we have said has been taken by the writ of error.

The appeal is dismissed. 
      
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