W. Y. Benge, Jr. v. Drew E. Holderman & Company ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-89-220-CV





W. Y. BENGE, JR.,

APPELLANT

vs.





DREW E. HOLDERMAN & COMPANY,

APPELLEE

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT

NO. CV88-0630-B, HONORABLE JOHN E. SUTTON, JUDGE PRESIDING

PER CURIAM

Appellant W.Y. Benge, Jr., perfected an appeal from a judgment of the district court of Tom Green County in favor of appellee Drew E. Holderman & Company. When Benge filed for bankruptcy in December 1989, further action in this cause was automatically stayed. 11 U.S.C. § 362 (1988); In re Benge, No. 689-60267 (Bankr. N.D. Tex.). After Benge's discharge from bankruptcy, this Court reinstated the appeal that the Court had previously abated. Benge v. Drew E. Holderman & Co., No. 3-89-220-CV (Tex. App.--Austin Apr. 6, 1994) (not designated for publication) (appeal reinstated); Benge v. Drew E. Holderman & Co., No. 3-89-220-CV (Tex. App.--Austin May 6, 1992) (not designated for publication) (appeal abated).

On April 6, 1994, the Clerk of this Court filed the statement of facts in this cause. ⁽¹⁾ Benge's brief was therefore due no later than May 6, 1994. Tex. R. App. P. 74(k). By letter dated June 8, 1994, the Clerk notified Benge that the appeal was subject to dismissal for failure to file a brief unless he submitted a motion showing a "reasonable explanation . . . for such failure and that appellee has not suffered material injury thereby." Tex. R. App. P. 74(l)(1); see Tex. R. App. P. 60(a)(2), 74(n).

To date, Benge has tendered neither a brief nor a motion seeking a modification of time for filing his brief. Accordingly, we dismiss the appeal for want of prosecution. Tex. R. App. P. 74(l)(1); Veale v. Rose, 688 S.W.2d 600 (Tex. App.--Corpus Christi 1984, writ ref'd n.r.e.).

Before Chief Justice Carroll, Justices Kidd and B. A. Smith

Appeal Dismissed for Want of Prosecution

Filed: August 31, 1994

Do Not Publish

1. ¹ The Clerk received the statement of facts on January 8, 1990, during the pendency of the automatic stay. The transcript was filed on November 1, 1989.