Opinion
No. 7849.
April 4, 1967.
Appeal from the District Court, Fannin County, A. M. Harrison, J.
Olan R. Van Zandt, Sherman, for appellant.
Edward Southerland, Cunningham, Cole Southerland, Bonham, for appellees.
HISTORY
On January 8, 1962, the Savoy Independent School District, acting by and through its Board of Trustees, O. L. Burris, W. S. Steedman, Leon Hughes, Billy C. Wrenn, Galion Moore, Fred Merworth and Eugene F. Hensley, entered into a contract in writing with Virgil D. Morgan as school superintendent for three years beginning on July 1, 1962. On July 31, 1963, the Board of Trustees removed, or fired, Morgan as school superintendent. On April 21, 1965, the Board of Trustees held another meeting and decided to pay to Morgan the sum of $1,905.00. The School District and Morgan appealed this decision to the district court. The school district alleged that it did not owe Morgan anything and prayed that he take nothing. Morgan answered and filed a cross action and alleged that the school district was indebted to him in the sum of $4,504.80, and in the alternative, that the school district owed him the sum of $1,905.00.
The case went to trial before the court on May 31, 1966. After all the evidence was in, the trial court took the case under advisement. On August 18, 1966, the court made findings of fact and conclusions of law in favor of the plaintiff and cross-defendant, and that the defendant and cross-plaintiff should take nothing. On September 9, 1966, the trial court signed and entered a judgment to this effect. In the judgment the defendant and cross-plaintiff excepted and gave notice of appeal to the Court of Civil Appeals for the Sixth Supreme Judicial District of Texas. On October 6, 1966, Morgan filed an appeal bond in the sum of $1,105.90 with Lawyers Surety Corporation as surety and which was approved by the district clerk.
On November 8, 1966, Morgan filed an agreed motion for extension of time in which to file the transcript and statement of facts in the Court of Civil Appeals. This Court granted the motion to extend the time for 30 days, which expired on or about December 8, 1966. On December 9, 1966, the transcript and statement of facts were received by the Clerk of this Court. After due notice, no further motion for extension of time was filed by Morgan. On February 23, 1967, Savoy Independent School District, et al, filed a motion to affirm on certificate, to which motion was attached a certified copy of the judgment appealed from and of the appeal bond that was duly approved by the District Clerk. All this was done under the certificate of the District Clerk. Rule 387, Texas Rules of Civil Procedure. The motion was set for hearing, and notice thereof was given as required by Rule 387(d), T.R.C.P. No further action has been taken by Morgan.
Since the time to file the transcript and statement of facts has expired, the motion to affirm on certificate must be granted. Rule 387, T.R.C.P. Since the appeal bond is accompanied by such certificate the judgment must be rendered against the Lawyers Surety Corporation. Jones v. Banks, (Tex.Civ.App., 1960) 331 S.W.2d 370, n .w.h.
The motion to affirm on certificate is granted, including a judgment against Lawyers Surety Corporation as surety on Morgan's appeal bond.
Judgment affirmed on certificate.