Gonzales v. United States Fidelity & Guaranty Co. , 266 S.W.2d 238 ( 1954 )

W. O. MURRAY, Chief Justice.

Appellee, United States Fidelity and Guaranty Company, has filed this motion to strike the statement of facts heretofore filed in this Court, because it was not legally filed in the trial court, as is provided by Rule 381, Texas Rules of Civil Procedure.

Final judgment was rendered in the trial court on October 19, 1953. Appellant had fifty days thereafter within which to file the statement of facts in the trial court, or until December 8, 1953. The statement of facts was actually filed in the trial court on December 17, 1953, which was fifty-nine days after rendition of judgment. No motion was made to the trial court, under provisions of Rule 381, for an extension of time within which to file the statement of facts in the trial court. The statement of facts was not approved by the trial judge, but was approved by the attorney for the appellee, with a stipulation to the effect, that appellee was, not thereby waiving its right to object to the filing of the statement of facts either in the trial court or in the Court of Civil Appeals. The statement of facts and the transcript were filed in this Court on December 18, 1953, which was on the sixtieth day after the rendition of judgment, and no motion for an extension of time for filing the same was made in this Court.

Within thirty days thereafter, on January 15, 1954, appellee filed this motion to strike the statement of facts because it was not legally filed in the trial co.urt. We are of the opinion that this motion should be granted. Where the statement of facts is filed in the trial court after the fifty-day period provided for by Rule 381, supra, without permission of the trial judge, such filing is. a nullity and of no effect. Seaboard Fire & Marine Ins. Co. v. Halbert, Tex.Civ.App., 173 S.W.2d 180; State v. Lincoln, Tex.Civ.App., 147 S.W. 1195; Gerneth v. Galbraith-Foxworth Lumber Co., 117 Tex. 205, 300 S.W. 17; Id., Tex.Civ.App., 6 S.W.2d 215; Blackman v. Housing Authority of City of Dallas, Tex.Sup., 254 S.W.2d 103; Barron v. Theophilakos, Tex.Civ.App., 13 S.W.2d 739.

The appellant did file a motion January 15, 1954, in the trial court, asking the court to permit the filing of the statement of facts, or to regard same as filed therein within the sixty day period. This motion was filed eighty-eight days after the judgment in the trial court was rendered, and after the sixty day period for filing the record in the Court of Civil Appeals, and after the fifteen day period in which appellant might have- filed a motion for extension of time for filing the record in the appellate court. A hearing was had on this motion in the trial court on January 27, 1954, and an order entered by the trial judge, after expressing doubt as to whether he had any jurisdiction at that time, providing that in the event he did have jurisdiction the statement of facts could be filed in the trial court, at a period of more than fifty days and less than sixty days from the rendition of the judgment, and that such statement of facts may be regarded as so filed. We are of the opinion that after a period of seventy-five days from the rendition of judgment in the trial court and in cases in which no motion for an extension of time' has been filed in the Court of Civil Appeals, the trial judge has no jurisdiction to extend the fifty-day period provided by Rule 381, supra, for the filing of the statement of facts in the trial court, and therefore this order entered by the trial judge on January 27, 1954, was of no effect. Rule 381, supra; Lambert v. Houston Fire & Cas. Ins. Co., Tex.Civ.App., 254 S.W.Zd 405.

The Supreme Court, in the very recent case of Punch v. Gerlach, Tex. Sup., 263 S.W.2d 770; Id., Tex.Civ.App., 260 S.W.2d 240, held that appellee, by not filing a motion to strike the statement of facts within the thirty-day period provided for by Rule 404, T.R.C.P., waived his right to complain that the statement of facts was not filed in the trial court within the fifty-day period provided for by Rule 381, supra, and conversely it would seem that where appellee filed a motion within the thirty-day period provided for by Rule 404, supra, raising the question that the statement of facts has not been legally filed in the trial court and requesting that it be stricken, such motion should be granted. Seaboard Fire & Marine Ins. Co. v. Halbert, Tex.Civ.App., 173 S.W.2d 180.

A statement of facts which has not been legally filed in the trial court should be stricken. Crawford v. Crawford, Tex.Civ.App., 256 S.W.2d 875; Mossier Acceptance Co. v. Burwell, Tex.Civ.App., 205 S.W.2d 622; Parrish v. Parrish, Tex.Civ.App., 214 S.W.2d 700; Parks v. Purnell, 135 Tex. 182, 141 S.W.2d 585; McKay v. Kelly, Tex.Civ.App., 225 S.W.2d 992; Punch v. Gerlach, supra.

Accordingly, appellee’s motion to strike the statement of facts is granted.