Smith v. Spearman ( 1923 )

This suit was instituted by Thos. C. Spearman against B. T. Hill, of Martin county, and J. R. Smith, alleged to be a resident of Knox county, for $192, with interest from November 1, 1920.

Defendant Smith filed a plea of privilege to be sued in Knox county. The plaintiff filed a controverting plea. The court, upon hearing, overruled the plea, and Smith has appealed.

No brief has been filed for either party.

Rule 38 for the Courts of Civil Appeals (230 S.W. viii):

"A failure on the part of counsel for the appellant or plaintiff in error to file assignments of error and briefs in the trial court and in the Court of Civil Appeals within the time and in the manner prescribed by law and by the rules, shall be ground for dismissing the appeal or writ of error, either by the court of its own motion or on motion of the appellate or defendant in error, unless good cause is shown for such failure and that the appellee or defendant in error has not suffered material injury thereby in his defense of the cause in the appellate court. If the motion be overruled, the Court of Civil Appeals shall give such direction to the cause as it may deem proper." (Effective September 1, 1921.)

The transcript was filed in this court August 28, 1922.

The court is therefore of the opinion that the rule should be enforced and this appeal dismissed, and it is so ordered.