#### ST. JOHN et al. v. KINSER.

No. 10840.

Court of Civil Appeals of Texas. San Antonio.

May 1, 1940.

Rehearing Denied May 29, 1940.

*603Crane & Glarner, of Raymondville, and Arthur A. Klein, of Harlingen, for appellants.

B. D. Kimbrough, of McAllen, for ap-pellee.

MURRAY, Justice.

Appellee, Henrietta Kinser, has filed a motion to affirm as to appellant E. W. Archer and dismiss appeal as to appellant Alice St. John, Administratrix, or, in the alternative, to dismiss as to both appellants.

Appellant Alice St. John, Administratrix, has filed a motion for leave to file a supplemental transcript and an answer to ap-pellee’s motion. Appellant E. W. Archer has also filed an answer to appellee’s motion.

From the record before us it appears that on November 24, 1939, judgment was entered in the County Court of Willacy County in favor of Henrietta Kinser against E. W. Archer for the sum of $860. It was further decreed that Alice St. John, Administratrix, with the will annexed, of the estate of A. D. Struthers, deceased, recover nothing.

The judgment further shows that both Alice St. John, Administratrix, and E. W. Archer excepted and gave notice of appeal.

On December 13, 1939, ,E. W. Archer filed his appeal bond. On December 19, 1939, Alice St. John, Administratrix, filed her first amended motion for a new trial. On December 23, 1939, this motion was granted by Charles R. Johnson, County Judge, the judgment was set aside and the cause restored to the docket for trial. After granting the new trial Judge Johnson left the county. On December 30, 1939, the same being the last day of the term, Kennedy Smith, Esquire, a practicing attorney of Raymondville, was duly elected Special County Judge. Upon a hearing he set aside Judge Johnson’s order granting a new trial and overruled the motion for a new trial. To this last motion Alice St. John, Administratrix, again excepted and gave notice of appeal. This perfected her appeal, bond not being necessary.

On February 14, 1940, Alice St. John tendered in this Court a purported transcript of the record, which was filed by the Clerk of this Court. ,

On February 6, 1940, E. W. Archer filed in this Court his motion for an extension of time within which to file transcript and statement of facts; this motion was No. 13891. Before we passed upon this motion a transcript was filed and this Court, deeming it unnecessary to file two transcripts, dismissed the motion.

Appellee, Henrietta Kinser, contends that the judgment should be affirmed as to E. W. Archer because of his failure to file a statement of facts in the trial court, as required by Art. 2246, R.C.S.1925, Vernon’s Ann.Civ.St. art. 2246, within fifty days after said final judgment. We overrule this contention. The failure to file a statement of facts in the trial court would not furnish grounds for affirming a case on certificate in the court of appeals.

Archer filed a motion for an extension of time within which to file the record in this Court. This motion was made within the seventy-five days provided for by Art. 1839, Vernon’s Annotated Civil Statutes. This motion stated good grounds for an enlargement of time and showed good reasons for the delay and would have been granted by this Court but for the fact that when we came to a consideration of the motion, we found a record already on file; this being the record tendered by Alice St. John, Adminis-tratrix. It would clearly now be unjust for this Court to affirm the judgment because

*604Archer did not tender a record here, within the prescribed time.

Appellee next contends that the appeal should be dismissed as to Alice St. John, Administratrix, because the record filed here by her is defective. We overrule this contention. Alice St. John has asked leave to file a supplemental transcript supplying the defects of the original transcript and it being our duty to resolve all matters in favor of the appeal where we may properly do so, will grant this motion to file supplemental transcript.

Appellee’s motion to affirm as to appellant E. W. Archer, and dismiss appeal as to appellant Alice St. John, Administratrix, or, in the alternative, to dismiss as to both appellants, is overruled and the motion of Alice St. John for leave to file supplemental transcript is granted.