Brotherhood of Railroad Trainmen v. Edmonds

• Decision Date: 10 October 1928
• Docket Number: (No. 8049.)
• Citation: 10 S.W.2d 1011
• Parties: BROTHERHOOD OF RAILROAD TRAINMEN v. EDMONDS.
• Court: Texas Court of Appeals

10 S.W.2d 1011

BROTHERHOOD OF RAILROAD TRAINMEN v. EDMONDS.

(No. 8049.)

Court of Civil Appeals of Texas. San Antonio.

October 10, 1928.

Rehearing Denied November 28, 1928.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Action between the Brotherhood of Railroad Trainmen and Ima J. Edmonds. From the judgment, the former appeals. Cause dismissed.

Robert P. Coon, of San Antonio, for appellant.

McAskill, Williams & Alter, of San Antonio, for appellee.

FLY, C. J.

This suit was tried between January 3 and January 9, 1928, judgment being rendered on January 11. An appeal was perfected, and the record was filed in this court on April 28, 1928. The record contains 135 pages of typewritten matter, and the statement of facts covers 84 pages of type in addition to a book containing the constitution and general rules of the Brotherhood of Railroad Trainmen, printed matter which would amount to at least 150 pages of typewritten matter, and is attached to the statement of facts as a part thereof.

Five months after the record and statement of facts were filed in this court, that is, on September 28, 1928, a typewritten brief, containing 79 pages, was filed in this court, four days before the submission of this case on October 3, 1928. Of those four days one was Sunday, when usually work is set aside, leaving three days for appellee to prepare and file a brief, in answer to a brief in the preparation of which appellant had consumed five months. So flagrant a violation of the rules rarely occurs in preparing a case for submission, and it is in such disregard of the rules and the rights of appellee that this court is constrained to grant the motion to strike out the briefs and dismiss the appeal, as no fundamental error appears in the record.

The briefs are stricken from the files and the cause dismissed.

On Motion for Rehearing.

Appellant seeks to have the judgment of dismissal heretofore rendered for failure to file briefs set aside, on the ground that there was a waiver by appellees of the filing of the brief in the lower court; that there is fundamental error shown by the record; and that this court and others have held that briefs filed as late as the filing in this case was not cause for dismissal.

The agreement as to the filing of briefs was:

"Comes the plaintiff, Ima J. Edmonds, acting herein by and through her attorneys of record, McAskill, Williams and Alter, and waives the preparation and filing in this cause of plaintiff's brief in the trial court and agrees that same may be filed in the Court of Civil Appeals in due time."

Under that agreement the cause would not be dismissed for failure to file a brief in the trial court, and would not have been dismissed on the ground of a failure to file in this court at the time it was filed, if it could reasonably be held that the brief was filed in "due time." It cannot with any degree of reason be contended that the briefs were filed in "due time" within the contemplation of the agreement,...