Christensen v. Anderson

• Decision Date: 13 October 1900
• Citation: 58 S.W. 962
• Parties: CHRISTENSEN v. ANDERSON et al.
• Court: Texas Court of Appeals

58 S.W. 962

CHRISTENSEN v. ANDERSON et al.

Court of Civil Appeals of Texas.

October 13, 1900.

Appeal from district court, Dallas county.

Action by Gustav Christensen against W. D. Anderson and others. From a judgment in favor of defendants, plaintiff appeals. Motion by appellant to be allowed to file a transcript denied.

Harry Lawther, for appellant.

RAINEY, C. J.

This is a motion by appellant to be allowed to file a transcript in this cause, the statutory period of 90 days in which the law permits transcripts to be filed having expired. The appeal was perfected on the 15th day of July, 1899, and this motion was filed August 9, 1900. The causes for the failure to file are set forth in the motion, which we here insert, omitting the formal parts, to wit: "That this appeal was perfected on the 15th day of July, 1899, and that the ninety-days period within which, under the law, this appellant should have filed his transcript, expired on the 15th day of October, 1899. That said transcript was ordered and received from the clerk, and was delivered to the attorney for the appellant, on the 6th day of October, 1899, and would have been filed in this court immediately, but for the fact that a proposition of compromise and settlement of the matters in dispute in this case was then pending between the parties, and the attorney for appellees herein requested the appellant's attorney not to file the transcript until it was determined whether or no the parties could agree on a compromise and settlement of the matters in controversy, at the same time offering and agreeing to consent to the filing of the transcript after the expiration of the said ninety days. In this request attorney for appellant acquiesced, and thereafter, in the month of November or December, 1899, said proposition for compromise having failed, and it having been determined that no settlement of the matters in controversy could be reached by the parties, attorney for appellant prepared a motion, asking leave of the court to file his transcript, and presented the same to the appellees' attorney for his written consent and agreement thereto. That appellees' attorney inquired of appellant if he had his brief prepared, and, upon being informed that he did not, he requested appellant's attorney to delay the filing of his motion and the filing of the transcript until he should have printed and presented to appellees' attorney his brief. This request appellant's attorney acquiesced in, his understanding being that the court had prescribed no rules as to a time limit within which a transcript would be permitted to be filed after the expiration of the ninety days from the time appeal was perfected, and, in accordance with the statute in such case made and provided, exercised its sound discretion in the premises; and that, when the appellees consented to the filing of the same, that the court had never...