Connor v. Zachry

• Decision Date: 11 February 1909
• Citation: 115 S.W. 867
• Parties: CONNOR et al. v. ZACHRY.
• Court: Texas Court of Appeals

115 S.W. 867

CONNOR et al. v. ZACHRY.

Court of Civil Appeals of Texas.

February 11, 1909.

Appeal from District Court, Morris County; P. A. Turner, Judge.

Action by J. N. Zachry against W. T. Connor, Jr., and others. Judgment for plaintiff, and defendants appeal. On motion to strike out appellant's brief, and in the alternative to postpone the submission of the cause. Overruled.

J. M. Henderson, for appellants. L. S. Schluter and Terrell & French, for appellee.

HODGES, J.

The appellee files this motion to strike out the brief of the appellants, and alleges as grounds therefor: That a copy of appellants' brief was not filed in the lower court within the time and in the manner required by law and the rules of this court; that if it was ever filed at all in the lower court it was done about the 23d day of January, 1909, and after this cause had been set down for hearing in this court for the 28th day of January, 1909; that appellee had neither notice nor time in which to file his brief in said cause; and that no excuse, reasonable or otherwise, was given by the appellants for the failure to file their brief in the trial court. The facts alleged in the motion are probably sufficient to entitle the appellee to the relief prayed for; but the motion is not sworn to, neither is there any accompanying affidavit, or other evidence in support of the facts alleged. Where the relief sought in a motion depends upon an issue of fact, we think the facts relied on should be supported by evidence presented in some of the forms appropriate to the proceedings. This requirement is especially applicable to motions of which no notice is required to be given to the opposing party, and of which he may have no actual knowledge. We find among the papers of this case the following agreement: "We hereby waive filing and service of the appellants' brief in this cause, and agree that the same may be filed direct by the clerk of the Court of Civil Appeals." This is signed by the attorneys for the appellee. Article 1417 of the Revised Statutes of 1895 requires the appellant, or plaintiff in error, not less than five days before the time of filing of the transcript in the Court of Civil Appeals, to file with the clerk of the district court a copy of his brief, which shall be deposited with the papers and notice thereof forthwith given the appellee, or defendant in error. This is the method prescribed by the statute for notifying the appellee, or defendant in error, of the filing...