Jaeger v. Cullen , 183 S.W.2d 584 ( 1944 )

This case was submitted on October 26, 1944, after due notice, and is before the Court on the transcript, appellee's brief, in which dismissal or affirmance is urged, and appellants' motion for continuance. The records of this Court in this case reflect:

The transcript was filed July 20, 1944. A motion to extend time to file a statement of facts was filed at the same time. Time was extended through September 3, 1944.

On September 1, appellants tendered a statement of facts which the clerk declined to file on three grounds: (1) The statement of facts had never been filed in the trial court. Rule 381, Texas Rules of Civil Procedure. (2) It bore no agreement that it was correct. Rule 377(d). (3) It was not approved by the trial judge. Rule 377(d).

On the same day that the clerk refused to file the statement of facts, he notified appellants' counsel of such refusal by mail, giving the reasons therefor.

No further steps were taken by appellants until October 24, 1944, when appellants' counsel telephoned the clerk about the status of the case. On October 25, counsel filed a motion for continuance, seeking additional time for further action by appellants with reference to the statement of facts.

The clerk was right in declining to file the tendered statement of facts. It was in question and answer form, certified to by the Court Reporter of the trial court. It was not sufficiently authenticated, so not eligible for filing.

Rule 414 provides that appellants' brief be filed within 30 days after the filing of the transcript and statement of facts, if any. No statement of facts being filed, the time for filing appellants' brief expired 30 days after July 20, the day the transcript was filed. In any event the time for filing such brief expired 30 days after September 3, the day the extended leave to file the statement of facts expired.

In the absence of seasonable action by appellants for further extension of time to file statement of facts, or to file their brief, we are constrained to hold them guilty of such noncompliance with Rules 386 and 414, Texas Rules of Civil Procedure, as requires that the appeal be dismissed, and it is so ordered. Rule 415.

Dismissed for want of prosecution.