Hernandez v. Pastran , 1911 Tex. App. LEXIS 358 ( 1911 )

The defendant in error on the 20th of October, 1911, filed a motion to dismiss the writ of error in this cause:

"(1) Because plaintiff in error failed to file a brief in the district court of Bexar county, Tex., five days prior to his filing the transcript in this, the Court of Civil Appeals.

"(2) Because plaintiff in error has never filed any brief in this, the Court of Civil Appeals, and said cause is now set down for submission on November 1, 1911.

"(3) Because this cause has been set down for submission on November 1, 1911, in this court, and plaintiff in error has not filed any brief in the court below or in this court, and has never presented defendant in error with any copy of his, plaintiff in error's brief; that defendant in error could not now prepare a brief in this cause in time for the date of submission, and has been injured and inconvenienced by the negligence of plaintiff in error herein."

The indorsement on the transcript in this cause by the clerk of the district court is: "Applied for by Geo. C. Altgelt and Anderson Belden, attys. of record for appellants, on the 31st day of October, 1910, and delivered to Anderson Belden on the 15th day of December, 1910." The same was filed in this court on the 20th day of February, 1911. No answer is filed in reply to said motion, and no authorities cited in the motion to dismiss. After said motion had been filed to dismiss, plaintiffs in error on the 23d day of October, 1911, filed a copy of the brief with the district clerk, and on the same day filed their briefs in this court.

Article 1417, Rev.St. 1895, requires that a brief shall be filed with the clerk of the district court not less than five days before filing the transcript in the Court of Civil Appeals, of which the opposite party should be notified by the clerk, and in 20 days after such notice the appellee or defendant in error shall file a copy of his brief with the clerk of said court below, and with the clerk of the Court of Civil Appeals, four copies. As the case is to be submitted on November 1, 1911, the 20 days in which defendant in error would have to file his brief would not have expired; hence plaintiff in error has not complied with the statute. S. A. A. P. Ry. Co. v. Brock, 77 S.W. 953; Krisch v. Richter, 125 S.W. 935.

We believe the motion to be well taken, and the same is granted and cause dismissed.