Spinks v. Simmons , 1977 Tex. App. LEXIS 2759 ( 1977 )

SHANNON, Justice.

On February 22, 1977, appellant, Guy H. Spinks, timely filed with the Clerk of this Court the transcript in Cause No. 12,603, Guy H. Spinks v. Pauline Simmons. On that date appellant also tendered to the Clerk thé statement of facts in the same cause. Because the statement of facts was not agreed to by the parties or approved by the trial court, the Clerk refused to file that part of the record. Tex.R.Civ.P. 377(d), 389a.

Later, but within the time permitted by Tex.R.Civ.P. 21c, appellant filed with the Clerk his motion to extend time for filing the statement of facts. As explanation for his failure to file a properly executed statement of facts within the time permitted by Tex.R.Civ.P. 386, appellant alleged that “Appellant’s attorney was not furnished with the Statement of Facts by the Court Reporter in time to obtain approval of the Court or opposing counsel.”

Rule 21c provides in pertinent part as follows:

“The failure of a party to timely file a . statement of facts ... in the court of civil appeals . . will not authorize a dismissal or loss of the appeal if the defaulting party files a motion reasonably explaining such failure

As noticed previously, appellant sought to explain his failure to timely file a properly executed statement of facts upon the basis that the court reporter did not furnish counsel with such statement of facts in time to obtain the approval of the court or opposing counsel.

The statement of facts was due to be filed with the Clerk of this Court on February 22, 1977. An inspection of the statement of facts tendered the Clerk of this Court shows that the statement of facts was filed with the district clerk on January 31, 1977. Accordingly, the statement of facts obviously was completed and filed with the district clerk twenty-two days previous to February 22, 1977.

Under these circumstances, as a matter of law, appellant failed to reasonably explain his failure to file the signed statement of facts in this Court on February 22, 1977.

Appellant’s motion for extension of time to file the statement of facts is overruled.