Speer v. Rushing , 178 S.W. 1012 ( 1915 )

Appellee has filed a motion to dismiss the appeal in this case upon the grounds: (1) That there is no assignment of error in the record; and (2) that appellant did not file his brief in the trial court 5 days before taking out the record, as provided in article 2115, R.S.

Appellant filed a motion for a new trial, and has copied the several grounds thereof in his brief. This is in compliance with article 1612, Vernon's Sayles' Ann.Civ.St. 1914, which provides that:

"Where a motion for a new trial has been filed the assignments therein shall constitute the assignments of error and need not be repeated by the filing of the assignments of error."

An appeal will be dismissed in a proper case where there has been a failure to comply with article 2115; that is to say, where the failure to comply with said article has resulted in depriving appellee of reasonable time and opportunity to reply to appellant's brief, and no sufficient excuse for same is shown. Bowden v. Patterson, 108 S.W. 177; Railway Co. v. Martin, 132 S.W. 834; Wiseman v. Maddox, 135 S.W. 756; Hernandez v. Pastran, 140 S.W. 508.

But, while the statute makes failure to comply therewith a ground for dismissing an appeal, it does not require a dismissal in such case, and an appeal will not be dismissed for such cause where the appellee has been afforded ample time and opportunity to file his brief before the cause is submitted. Railway Co. v. Holden, 93 Tex. 211, 54 S.W. 751; Railway Co. v. Wood (Civ.App.) 147 S.W. 283; Gibbs v. Eastham (Civ. App.) 139 S.W. 1166; Morrison v. Harrell (Civ.App.) 139 S.W. 1166; Danner v. Walker-Smith Co. (Civ.App.) 154 S.W. 295; Crenshaw v. Hempel (Civ.App.) 130 S.W. 731; Bull v. Railway Co., 33 Tex. Civ. App. 547,78 S.W. 525; Deaton v. Feazle (Civ.App.) 85 S.W. 1167.

The record in this case was delivered to appellant's attorney May 11, 1915, and was filed in this court May 20, 1915. On June 2, 1915, appellant filed a copy of his brief with the district clerk, and his counsel state, in answer to appellee's motion to dismiss, that they delivered a copy of same to appellee's attorneys on June 2, 1915. Appellant filed four copies of his brief with the clerk of this court on June 4, 1915. Owing to the crowded condition of our docket this case cannot be reached for submission before our October term. It thus appears that appellee has suffered no injury by appellant's failure to file a copy of his brief with the district clerk before taking out the transcript.

For the reasons stated, the motion to dismiss this appeal is overruled.

Overruled.