McGovern v. Smith

PER CURIAM.

On December 17, 1974, appellant filed this second motion for an extension of time for filing the statement of facts in her appeal from an order overruling her amended motion for new trial.

The order overruling appellant’s amended motion for new trial was signed on August 28, 1974. The transcript was timely filed on October 25, 1974. On November 5, we granted appellant’s motion and extended the time for filing the statement of facts until November 15, 1974. The second motion is supported by the affidavit of appellant’s attorney. He avers that the court reporter informed him on November 14, 1974, that the statement of facts had been filed on that day. It was not until appellant’s brief was filed on December 16, 1974, that appellant’s attorney learned that the statement of facts had not been filed in our Court by the court reporter. It actually was filed with the district clerk.

It is settled that the Court of Civil Appeals has no discretion to grant an extension of time for filing a statement of facts where the record shows affirmatively that same could have been timely filed. Pollard v. American Hospital and Life Insurance Co., 472 S.W.2d 116 (Tex.1971). Here the record establishes that the statement of facts was completed and could have been timely filed. Appellant made the court reporter her agent for the purpose of filing the record and cannot now complain of his failure to carry out his gratuitous promise to file same.¹ Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950).

The motion for extension of time is denied.

1 . Our clerk would not have been authorized to file same until it had been approved by the attorneys or trial court. See Rule 389a, Texas Rules of Civil Procedure (1967).