Barron v. Barron

• Decision Date: 14 December 1962
• Docket Number: No. 3778,3778
• Parties: John Neeley BARRON, Appellant, v. Clara BARRON, Appellee.
• Court: Texas Court of Appeals

Page 425

365 S.W.2d 425

John Neeley BARRON, Appellant, v. Clara BARRON, Appellee.

No. 3778.

Court of Civil Appeals of Texas, Eastland.

Dec. 14, 1962.

Rountree, Renner & Snell, Lamesa, for appellant.

Huffaker & Green, Tahoka, for appellee.

COLLINGS, Justice.

Appellant, John Neeley Barron, has filed a motion for extension of time in which to file a Transcript and Statement of Facts. Appellee, Clara Barron, has filed a motion to affirm on certificate.

It is shown that judgment was entered on August 7, 1962, granting appellee a divorce, adjudication of property rights, granting plaintiff custody of minor children and directing the sale of certain community property by a receiver. On September 12, 1962, appellant's motion for a new trial was overruled and he immediately gave notice of appeal. Thereafter, on October 13, 1962, appellant filed his cost and supersedeas bond which was on the same date approved by the clerk of the District Court and thereby perfected his appeal. Rule 356, Vernon's Annotated Texas Rules of Civil Procedure and Article 4591, Vernon's Ann.Tex.Civ.St. Appellant has not filed a Transcript or Statement of Facts in this court but on November 9, 1962, did file a motion for an extension of time in which to file his Transcript and Statement of Facts.

Rule 386, V.A.T.R.C.P. provides as follows:

'Time to File Transcript and Statement of Facts. In appeal or writ of error the appellant shall file the transcript and statement of facts with the clerk of the Court of Civil Appeals within sixty days from the rendition of the final judgment or order overruling motion for new trial, or perfection of writ of error; provided, by motion filed before, at, or within a reasonable time, not exceeding fifteen days after the expiration of such sixty-day period, showing good cause to have existed within such sixty-day period why said transcript and statement of facts could not be so filed, the Court of Civil Appeals may permit the same to be thereafter filed upon such terms as it shall prescribe.'

Appellant's motion for an extension of time in which to file his Transcript and Statement of Facts was timely filed under the provisions of Rule 386, supra. The motion did not, however, show good cause why said Transcript and Statement of Facts could not be filed within the required sixty day period and should, therefore, be overruled. The allegations set out in the motion for extension show that appellant saw his counsel several times after the overruling of his motion for a new trial and that on each occasion his attorney emphasized the importance of diligence in requesting the proper officials to prepare the Transcript and Statement of Facts but that appellant never informed his counsel that he wanted to go ahead with the appeal or authorized him to order the...