Alderete v. Mosley , 1916 Tex. App. LEXIS 1128 ( 1916 )

The transcript in this case was filed in this court on April 4, 1916. The case was set down for submission for November 9, 1916. No briefs for appellant have been filed in this court within the time required for filing briefs. A stipulation is found in the record which provides for the filing of briefs for appellant within 35 days before the cause is submitted in this court. The appellants did not file briefs within the time stipulated.

On November 1, 1916, appellants made application to this court for permission to file their briefs. The application was opposed by appellee on the grounds that the appellants had not filed their briefs within the time stipulated, and that appellee could not within the time before submission prepare and file his briefs. Appellee filed a motion to dismiss the appeal on the grounds stated.

Rule 39 (142 S.W. xiii) provides that a failure of appellant to file his briefs in this court In the time and in the manner prescribed by law and by the rules shall be grounds for dismissing the appeal for want of prosecution, on motion made by appellee, unless good cause is shown why it was not done in the time and manner as prescribed. Appellants have not, in our Judgment, shown good cause why their briefs were not filed within the time prescribed by law, nor within the time stipulated.

The law contemplates that the appellee shall be given sufficient time within which to prepare and file his answer before submission after appellants have filed their briefs. T. P. Ry. Co. v. Martin,62 Tex. Civ. App. 496, 132 S.W. 834; Rojas v. Rojas, 154 S.W. 1071; State Fair of Texas v. Cowart, 165 S.W. 1197; Moon v. Dozier, 151 S.W. 656.

Appellee's motion to dismiss the appeal is sustained, and the appeal is dismissed.