Opinion
Motion No. 651. Case No. 589.
Decided February 6, 1899.
Practice in Supreme Court — Withdrawal of Transcript.
When a case has been finally determined in the Supreme Court or Court of Civil Appeals the transcript can not be withdrawn, though all parties to the proceeding consent to the granting of a motion allowing it.
MOTION in cause previously affirmed on error to the Court of Civil Appeals for the Fourth District in an appeal from Bexar County ( 91 Tex. 184), for leave to withdraw transcript.
Franklin, Cobbs McGown, for motion, on behalf of plaintiff in error.
The above entitled case was decided at a former term of this court, and the judgment of the trial court was affirmed. This is a motion by the attorneys for the defendants in error to withdraw the transcript, and it is agreed to by the attorneys for the plaintiff in error. The motion can not be granted. Before the final disposition of a cause, counsel for either party may, under some restrictions, take the transcript temporarily from the office of the clerk; but the rules do not contemplate that after a cause has been determined in this court or in a court of civil appeals that the transcript should ever be permanently withdrawn, except in cases of the court of civil appeals, in which the appeal or writ of error has been dismissed. Under rule 56 of Rules for the Courts of Civil Appeals, a party or his attorney may obtain possession of a transcript, but under rule 55 he must receipt therefor, and under rule 60, it can not be taken "out of the reach of the court." By rule 13, of rules for this court, these rules for the courts of civil appeals in regard to transcripts are made applicable to this court. When a case has been finally determined in this court or in a court of civil appeals, important rights, dependent upon the judgment, may be acquired by third parties, and sound policy demands the transcript, upon which the case has been decided, should be carefully preserved. It should not be. withdrawn even with the consent of all parties to the proceeding; and the rule should be enforced without exceptions.
The motion is overruled.
Overruled.