Opinion
Decided October 9, 1909.
ON MOTION TO AFFIRM ON CERTIFICATE.
1. — Affirmance on Certificate — Transcript.
A properly certified copy of the judgment sought to be affirmed on certificate must accompany the motion to affirm, otherwise the motion will be refused.
2. — Same — Statute.
Under the provisions of article 1016, Rev. Stats., the appellee or defendant in error is required to file the certificate for affirmance of a judgment at the term of the Appellate Court to which the appeal is returnable. A failure to do this is fatal to a motion to affirm.
No briefs for either party.
Appellee by this motion seeks to have affirmed on certificate a certain judgment procured by him against appellant in the District Court.
The transcript accompanying the motion contains what purports to be a copy of the judgment sought to have affirmed, but such copy is not certified by the district clerk to be a copy of such judgment. It seems to be settled law in this State that a properly certified copy of the judgment must accompany the motion to affirm, otherwise the motion will be refused. (House v. Williams, 40 Tex. 347; Sloan v. McMillin, 113 S.W. 587.)
There is another objection to the motion. The appeal was perfected by filing of appeal bond March 27, 1909. The time for filing the record here expired June 25th. The term of this court continued by law until first Monday in July. So the appeal was returnable to that term. The motion to affirm and certificate were filed in this court September 23, 1909. Under article 1016, Revised Statutes, the appellee or defendant in error is required to file the certificate for affirmance at the term of the appellate court to which the appeal is returnable. (Laughlin v. Dabney, 86 Tex. 120; Pickett v. Mead, 25 S.W. 654.) The motion to affirm must be refused.
Motion refused.