Opinion
December 18, 1912.
Appeal from District Court, Uvalde County; R. H. Burney, Judge.
Action by West Bros. and others against the St. Louis, Iron Mountain Southern Railway Company. On motion to dismiss, defendant appeals. Motion overruled.
Guinn McNeill, of San Antonio, for appellant.
Appellees seek to dismiss this appeal because the certificate of the clerk "fails to state the transcript is a true copy of all proceedings."
The jurisdiction of this court does not depend upon the kind of certificate the clerk attaches to the transcript, but, if the certificate should be defective, the cause might be dismissed, if a motion to dismiss should be filed in time This cause was filed in this court on August 11, 1912, and the transcript was placed in the hands of attorneys for appellees on October 3, 1912, which was notice to them of the filing of the transcript if the mere filing of the transcript near the expiration of the 90 days allowed for such filing was not notice in itself, and the motion to dismiss was filed on November 23, 1912, over 50 days after appellees obtained the transcript and over three months after the filing of the transcript. The lack of a proper certificate would be a mere informality in bringing the case into court, and a motion to dismiss on that ground should, under the terms of rule 8 for Courts of Civil Appeals (142 S.W. xi), have been filed "within thirty days after the filing of the transcript" in this court, and the objection was thereby waived.
The motion to dismiss is overruled.