Brownsville Navigation District v. Valley Ice & Fuel Co.

PER CURIAM.

Appellees have moved to dismiss this appeal because allegedly appellant’s brief was not filed within the thirty-day period provided by Rule 414, Texas Rules of Civil Procedure.

The facts are, that the last day for the filing of the record, under an enlargement of time granted by this Court, was 'November 30, 1957. Appellant placed the record in the United States Mail, properly addressed and stamped, at least one day before the final day for filing, and a postal mark was stamped upon the envelope in which the record was mailed, showing the timely mailing of the record. Accordingly, appellant was entitled to have the record filed when received by the Clerk of the Court, provided it arrived within ten days, as is provided for in Rule 5, T.R.C.P.

We interpret Rule 5 as meaning that the Clerk of this Court should file the record as of the date he receives it and not as of the date when it would have been filed if delivered otherwise than by United States Mail. The rule does not authorize or require the Clerk to antedate his filing. It is true that in this manner the appellant may gain a few extra days for filing his brief, but this is simply the result of the plain provisions of Rule 5.

Our Clerk received the record on December 2, 1957, and filed it on that date. Appellant had thirty days thereafter, under Rule 414, within which to file his brief. Thereafter, appellant placed his brief in the United States Mail, postmarked at Harlingen, Texas, on December 30, 1957. The Clerk received this brief on January 2, 1958, and filed it as of that date. Under our interpretation of Rules Nos. 5 and 414, supra, appellees had twenty-five days from January 2, 1958, within which to file their briefs.

Appellee Valley Ice and Fuel Companyjs motion to dismiss the appeal because appellant’s brief was not timely filed, is overruled.

Appellee Steve Mencsik’s motion to dismiss this appeal for the reason above stated, is likewise overruled.