Opinion
April 27, 1912.
Error from Potter County Court; W. M. Jeter, Judge.
Action by Lorena Morris, by next friend, J. S. Morris, against C. E. Anderson, Lois Morris, and others. Judgment for Lois Morris against Lorena Morris, and she brings writ of error. Motion by defendant Lois Morris to affirm on certificate, or, in the alternative, to dismiss the appeal. Motion overruled.
Barrett Jones, of Amarillo, for plaintiff in error.
Crudgington Umphres, of Amarillo, for defendants in error.
In this case, on the 17th day of March, 1911, one of the defendants below, Lois Morris, recovered judgment against plaintiff in error, Lorena Morris, by her next friend, J. S. Morris, in the sum of $238, with interest thereon from the 17th day of March, 1911, from which said judgment plaintiffs in error duly appealed by writ of error to the Court of Civil Appeals for the Second Supreme Judicial District, at Ft. Worth, filing their supersedeas bond herein on May 23, 1911, to which said court said appeal was at that time returnable. On March 23, 1912, the defendant "Louie" (Lois) Morris filed her motion to affirm on certificate and, in the alternative, to dismiss the appeal in this cause, and said motion is here considered.
It appears from the certificate and motion and answer that one of the defendants in error, C. S. Morris, has never been served with citation in error, but since the filing of this motion has duly entered his appearance by waiver, filed in this cause on the 12th day of April, 1912. It is well settled by the decisions in this state that plaintiff in error is not required to file a transcript in the appellate court until the appeal is perfected by service of citation in error, or by waiver of the same; and that plaintiff in error has 90 days, under the statute, from the perfecting of the appeal to file said transcript.
Upon the record as made by the transcript and motion and answer filed herein, we conclude that the appeal was not perfected in this case until the filing of the waiver of the defendant in error C. S. Morris on the 12th day of April, 1912, and we are therefore unable, under the law, at this time to grant the motion of defendant in error Lois Morris and affirm on certificate. Scarborough et al. v. Groesbeck, 25 S.W. 687; Crunk v. Crunk, 23 Tex. 605; Garney v. Menefee, 53 Tex. Civ. App. 490, 118 S.W. 1083; Chambers v. Shaw, 16 Tex. 144, 145.
Defendant in error Lois Morris, in her motion, insists that there was collusion on the part of the defendant C. S. Morris and plaintiffs in error to bring about delay in the disposition of this case in this court, and also a want of diligence on the part of plaintiffs in error in prosecuting their appeal. This issue is controverted by the answer of plaintiffs in error, resisting defendants' motion to affirm, or, in the alternative, dismiss this appeal, and claiming that the delay was not the fault of plaintiffs in error, but of the clerk of the court below, and of the negligence and misrepresentations of the attorney whom plaintiffs in error employed to prosecute this appeal; and that said plaintiffs in error did not know that said appeal had not been perfected until service of defendants in error's motion to affirm on certificate; whereupon they were compelled to and did employ other attorneys to perfect said appeal and represent them in this cause. Upon the state of the record as made by the certificate, the motion to affirm, and the answer thereto, we do not feel warranted at this time in dismissing the writ of error in this case; and defendants in error's motion to affirm on certificate, or, in the alternative, to dismiss, is accordingly overruled.