Briscoe v. Gulf Supply Co., Inc., 18515
| Decision Date | 05 February 1981 |
| Docket Number | No. 18515,18515 |
| Citation | 612 S.W.2d 88 |
| Parties | Bill BRISCOE, Appellant, v. GULF SUPPLY CO., INC. d/b/a International Materials & Service Co., Inc., Appellee. |
| Court | Texas Court of Appeals |
Beecham, Brown, Longenecker, Rapier & Yeager and John E. Rapier, Dallas, for appellant.
Carrington, Coleman, Sloman & Blumenthal, and Mark S. Werbner, Dallas, Childs, Fortenbach, Beck & Guyton, and Jennifer Wilson, Houston, for appellee.
January 9, 1981 Transcript of the clerk of the trial court was received and filed by the clerk of this appellate court. This filing was by direction of the court because presented after date of January 1, 1981 when the new and/or amended Rules of Civil Procedure became effective. It was believed that while there was no doubt but that we ultimately would disregard or perhaps dismiss the transcript filed on January 9, 1981 because it was not timely presented, nevertheless we were obliged to accept and file it. Tex.R.Civ.P. 386 "Time to File Transcript and Statement of Facts."
Under neither the old rules or those new amended rules effective January 1, 1981 calculation for permissible "timely filing" of the transcript in this court reveals that the last day would be December 15, 1980, because, in this case, no motion for new trial was filed. In such a case the transcript is "timely filed" at anytime within sixty (60) days after the date judgment was signed. This is true under neither the new or old rules.
Perforce provisions of Tex.R.Civ.P. 21c, "Extensions of Time on Appeal" appellant could have filed, but did not, a motion for extension of time within which to file his transcript. Such motion could have been filed, with effect, to and inclusive of date of December 30, 1980. Had he filed a motion to that end by such date it would have been "timely filed." What that means is that thereby the appellant would have saved and preserved the authority and power of this court to grant (rightly or wrongly) an extension of time within which the transcript would be permitted to be filed.
Because appellant did not file his motion on or before December 30, 1980 there is no authority by law for this court to grant any extension of time within which to file the transcript.
It was thereafter (January 9, 1981 or later) that a motion for extension of time was filed. Such motion, when filed, was for extension of time within which to file both the transcript and statement of facts.
For our purposes the fact that we filed the transcript on January 9, 1981, when it...
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