Bean v. City of Arlington, 18637

• Decision Date: 05 February 1971
• Docket Number: No. 18637,18637
• Citation: 464 S.W.2d 208
• Parties: I. A. BEAN, Appellant, v. CITY OF ARLINGTON, Appellee.
• Court: Texas Court of Appeals

Page 208

464 S.W.2d 208

I. A. BEAN, Appellant, v. CITY OF ARLINGTON, Appellee.

No. 18637.

Court of Civil Appeals of Texas,

Fort Worth.

Feb. 5, 1971.

Craig, Whiteley, Boring, Morrison, Miles & Spurlock, Hurst, for appellant.

Owens & Fortney, Fort Worth, for appellee.

OPINION

ON MOTION FOR EXTENSION OF TIME TO FILE RECORD

LANGDON, Justice.

I. A. Bean, appellant, has presented to this Court his motion to extend the time for filing the transcript and statement of facts in this cause.

In our consideration and determination of this matter we will not be serving as a court of review as in the ordinary appeal because the proceeding originated in this Court. Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587 (1952); Exchange Estates, Inc. v. Donaldson, 412 S.W.2d 780 (Fort Worth, Tex.Civ.App.1966, no writ hist.); and Green v. Davis, 451 S.W.2d 579 (Fort Worth, Tex.Civ.App.1970, no writ hist.).

On November 20, 1970, the order overruling the appellant's amended motion for new trial was signed by the trial court. The order was approved as to form by George W. Boring of the firm of Craig, Whiteley, Boring, Morrison and Miles, as 'Attorneys for Defendants', Damon Shipp and I. A. Bean. (Damon Shipp is not a party to this motion.)

A letter dated January 21, 1971, written on the letterhead of the law firm of Craig, Whiteley, Boring, Morrison and Miles, and signed by George W. Boring, was directed to the clerk of this Court enclosing the motion of the appellant, I. A. Bean, for the extension of time.

The motion was received and filed in this Court on January 22, 1971.

The motion, signed by George W. Boring, as attorney for appellant, recites, 'That due to the illness and subsequent operation on Appellant's attorney, George W. Boring, he was unable to order the transcript and statement of facts timely for their presentation to this Honorable Court within the sixty day period'; and further, 'that the illness of George W. Boring which is the cause underlying Appellant's Motion to Extend Time herein requested, is now proceeding satisfactorily and that the attorney, George W. Boring, has now returned to full time practice of law.'

The above motion does not reflect the date on which Mr. Boring became ill, the nature of such illness or the date of his recovery. R. T. Miles was co-counsel during trial of the cause. Mr. Miles ordered the statement of facts in the case on December 18, 1970. This was timely and a show of diligence. There is no showing in the motion as to why Mr. Miles or one of the other attorneys of the firm could not have attended to the other matters here involved. The handling of such matters could very readily have been accomplished by using the telephone, the U.S. mail, or the Western Union telegram or messenger service.

The motion of Bean for extension of time is not verified by affidavit. It is not supported by any written evidence, verified by affidavit. This procedure is contrary to the requirements set out in Rhodes v. Turner, 164 S.W.2d 743 (Fort Worth, Tex.Civ.App.1942, no writ hist.), and Carter v. City of Fort Worth, 357 S.W.2d 581 (Fort Worth, Tex.Civ.App.1962, ref., n.r.e.).

On January 28, 1971, the City of Arlington filed its reply to the motion of I. A. Bean. It was accompanied by written evidence verified by affidavits of the attorney for the City of Arlington, the court reporter who prepared the statement of facts, and the transcript clerk (Deputy Clerk) in the office of the District Clerk.

The affidavit of the court reporter reflects the statement of facts was ordered on December 18, 1970, as above reflected, and that it was ready on January 18, 1971, within the 60 day period. On the same date, January 18, 1971, the attorneys for I. A. Bean were notified of its completion. It was not picked up that date. On the following day, January 19, 1971, the statement of facts was delivered to Mr. R. T. Miles, one of the attorneys for I. A. Bean.

Mr. Miles presented the statement of facts to the attorney for City of Arlington on January 19, 1971, for signing. The attorney refused to sign same at that time because 'I. A. Bean had neither filed an appeal bond, nor a supersedeas bond, nor made a cash deposit in lieu thereof with the District Clerk of Tarrant County, Texas, within 30 days after the date of the order of the trial court overruling the amended motion for new trial.'

On January 21, 1971, I. A. Bean filed his written request with the District Clerk of Tarrant County requesting a transcript in this cause and on the same date made a deposit of $200.00 with the District Court in lieu of an appeal bond. These facts are established by written evidence verified by the Deputy District Clerk.

Rule 354, Texas Rules of Civil Procedure, prescribes the requirement of the cost bond or cash deposit in lieu thereof.

Rule 356, T.R.C.P., 'Time for Filing Cost Bond', provides: '(a) Whenever a bond for costs on appeal is required, the bond shall be filed with the Clerk within thirty days after rendition of judgment or order overruling motion for new trial. If a deposit of cash is made in lieu of bond the same shall be made within the same period. * * *'

Rule 386, T.R.C.P., 'Time to File Transcript and Statement of Facts', provides: '* * * 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, * * * 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.'

Rule 4, T.R.C.P., provides the yard stick for computation of time periods.

The days designated in Article 4591, Vernon's Ann.Civ.St., are the only legal holidays within the meaning of Rule 4, T.R.C.P. Smith v. Harris County-Houston Ship Chan. Nav. Dist., 160 Tex. 292, 329 S.W.2d 845 (1959).

The date of the act after which time begins to run is not to be counted but where an act is required to be done within a stated time, the last day of the period is to be included. Pitcock v. Johns, 326 S.W.2d 563 (Austin, Tex.Civ.App.1959, ref.), and De Leon v. Holt, 322 S.W.2d 659 (Austin, Tex.Civ.App.1959, no writ hist.). See other cases cited under Rule 4, T.R.C.P.

The Supreme Court of Texas has expressly approved the rule of law that a motion timely filed which asserts as grounds for late filing the fact that for 'good cause' the statement of facts is not ready is also sufficient reason for the late filing of the transcript when both the statement of facts and the transcript are...