Burns v. Allied Mills, Inc.

DAVIS, Justice.

This is a plea of privilege case. The Order was signed and entered on February 24, 1971. The transcript and statement of facts were filed in the Court of Civil Appeals on March 16, 1971. The case was transferred to this Court by the Texas Supreme Court. The Appellant had until April 15th to file his brief. On April 23, 1971, the Appellee filed his Motion to dismiss the appeal for the want of prosecution because the Appellant had failed to timely file his brief under Rule 414, T.R. C.P. He noted on the copy of the Motion to Dismiss the appeal that a copy had been mailed to the attorney for the Appellant at his post office address.

Attorney for Appellant did not tender a brief for filing until April 29, 1971. Attached to the brief was only a letter which reads as follows:

“Dear Mrs. Henry:

“Enclosed are three copies of the Brief of Appellant in the above matter.

“A copy of this letter is being furnished to Mr. Bryant, together with a copy of the Brief.

“Because of pressing matters I have been delayed in submitting this Brief, which is over due, and it is hoped the Court will consider the same.

“DT/bb

“Enclosures — 3

Yours very Truly,

/s/ Duke Taylor

“CC: Mr. William R. Bryant

Henderson Bryant & Wolfe

Sherman, Texas.”

Duke Taylor

Rule 385, T.R.C.P. gives the Appellant 20 days in which to file the Transcript and Statement of Facts in the Court of Civil Appeals after the date the Judgment is signed and entered. The record in this case was filed on the 20th day.

After the Transcript and Statement of Facts were filed in the Court of Civil Appeals, the Appellant had 30 days in which to file his brief, Rule 414, T.R.C.P. The Court of Civil Appeals has the power to grant an extension of time for filing the briefs on a Motion filed by the Appellant, verified by his affidavit, which shows a good cause for the delay and that no injury will result to the Appellee. Rhodes v. Turner, Tex.Civ.App., 1942, 164 S.W.2d 743. See cases cited under Note 12, Rule 414, T.R.C.P.

Where the only reason offered by the Appellant for his failure to timely file his brief was because of “pressing matters,” that does not show a good cause. Boyd v. Chicago, R. I. & P. Ry. Co., Tex.Civ.App., 1941, 149 S.W.2d 1053, N.W.H.

Rule 415, T.R.C.P. provides for the dismissal of a case for want of prosecution because of the failure of the Appellant to timely file his brief without showing a good cause therefor and that it will not result in any injury to the Appellee, Mitchell v. Gregg, Tex.Civ.App., 1965, 394 S.W.2d 665, N.W.H.

Where the Appellee filed a Motion to dismiss the appeal for want of prosecution because of the failure to file a brief, the Motion was set for hearing, notice was given to Appellant, Appellant did not appear, never filed briefs or offered any excuse for failure to do so, the appeal would be dismissed. Garrett v. State, Tex.Civ.App., 1963, 365 S.W.2d 670, N.W.H. Ap-pellee filed a Motion to dismiss the appeal for want of prosecution on April 23, 1971. Appellant did not reply thereto.

Where Appellant failed to file his brief within the prescribed time, offered no good cause for his failure to do so, had not made deposit for filing of record in another Court of Civil Appeals from which the case had been transferred, the appeal would be dismissed for the want of prosecution. Thomas v. Billingsley, Tex.Civ.App., 1968, 425 S.W.2d 661, N.W.H.

We feel that it is our duty to dismiss this case for the want of prosecution.

The appeal is dismissed.