CONLEY, C. J.
Defendants in error file a motion to dismiss this cause. First, for the reason that the plaintiff in error failed to file brief in the lower court, as well as briefs in the appellate court, within the time, and in the manner prescribed by law and by the rules governing this court in such matters ; and second, for the reason that the statement of facts, constituting a part of the record, was not filed until more than 90 days after the adjournment of the term of court at which the cause was tried. It would appear from the record that final judgment was rendered on September 7, 1914, and that the court adjourned September 12, 1914. The statement of facts was filed in the lower court January 30, 1915. A writ of error was sued out and bond filed August 30, 1915, citation in error was served on the defendants in error on the 30th day of August, 1915. The record was filed in this court November 8, 1915. A copy of plaintiff in error’s brief was forwarded to the clerk of the district court of Shelby county on the 14th day of December, 1915, and another copy sent, on the same day, to counsel for defendants in error, and on the same date briefs were filed in this court.
[1] Article 2115, Sayles’ Texas Civil Statutes, provides that not less than 5 days before the date of filing of the transcript in the Court of Civil Appeals, the appellant or plaintiff in error must file with the clerk of the court below a copy of his brief, and the rules further provide that four copies of such brief shall be filed in the appellate court. The courts have uniformly held that the statute above referred to is not mandatory, and when a failure to so file the briefs has not. resulted in any prejudice to the appellee or defendant in error, the case will not be dismissed therefor. Railway Co. v. Holden, 93 Tex. 211, 54 S. W. 751. It has been further held that if good cause is shown for the failure to file brief in the lower court 5 days before filing the transcript in the appellate court, the appeal will not be dismissed for *1069such failure. Railway Co. v. Milliron, 53 Tex. Civ. App. 325, 115 S. W, 656. There appears an affidavit attached to plaintiff in error’s reply to the motion to dismiss this cause, in which counsel for plaintiff in error says that he intended and expected to he able to brief this cause in time to file such brief in the lower court within the time required by law, but that he was taken ill, and was compelled to go to a sanitarium, where ho underwent an operation, which confined him to his home for a considerable time, and that on account of other urgent and pressing obligations to brief cases pending in the several Courts of Civil Appeals, he was unable to reach this case, and to file the briefs until the time herein stated. It also appears from examination of the docket of this court that the defendants in error will have at least 2 months in which to answer plaintiff in error’s brief, which brief is typewritten, containing only 14 pages, and has incorporated therein but one assignment of error. Under such circumstances we feel that plaintiff in error has shown good cause for his failure to comply with the statute and the rules of the court governing the filing of briefs, and that the defendants in error will have ample time to brief this cause, and that therefore the defendants in error have not been prejudiced by such failure to file briefs. Crenshaw v. Temple, 130 S. W. 731; Deaton v. Feazle, 85 S. W. 1167; Peoples v. Evans, 50 Tex. Civ. App. 225, 111 S. W. 756.
[2] The statement of facts was filed in time. A statement of facts filed any time within 12 months after the final judgment was rendered would be in time under a writ of error. Louisiana, etc., Canal Co. v. Quinn, 160 S. W. 151; McLane v. Haydon, 178 S. W. 1197.
The motion to dismiss the appeal will therefore be overruled.
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