Consolidated Cas. Ins. Co. v. Wade, 18

• Decision Date: 19 December 1963
• Docket Number: No. 18,18
• Citation: 373 S.W.2d 841
• Parties: CONSOLIDATED CASUALTY INSURANCE COMPANY, Appellant, v. H. L. WADE, Appellee. Motion
• Court: Texas Court of Appeals

Page 841

373 S.W.2d 841

CONSOLIDATED CASUALTY INSURANCE COMPANY, Appellant, v. H. L. WADE, Appellee.

Motion No. 18.

Court of Civil Appeals of Texas, Corpus Christi.

Dec. 19, 1963.

Rehearing Denied Jan. 9, 1964.

B. D. McKinney, of Baker, Botts, Shepherd & Coates, Houston, for appellant.

Bob Spann, of McDonald & Spann, Corpus Christi, for appellee.

NYE, Justice.

Appellant, on October 22, 1963, filed Motion No. 18 herein asking for an extension of time within which to file the statement of facts and transcript with the Clerk of this Court. The Motion is not verified, does not show on what date the judgment was rendered, whether or not a motion for new trial was filed, nor from what court the appeal has been taken. The motion admits that the appellant has not filed a transcript and statement of facts with the clerk of this Court within the sixty days required by Rule 386 Texas Rules of Civil Procedure.

Rule 386 T.R.C.P. provides as follows: 'Time to File Transcript and Statement of Facts: In appeal or writ of error 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, or perfection of writ of error; 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.'

The record was tendered for filing and was received by the clerk of this Court on November 14, 1963, some twenty-three days after the filing of the motion for enlargement of time.

If the record is tendered after the sixty-day period has expired, as in this case, the appeal will be dismissed by this Court for want of jurisdiction, unless the appellant's motion filed before, at or within a reasonable time not exceeding fifteen days after the expiration of said sixty-day period, shows good cause to have existed within such sixty-day period why said transcript and statement of facts could not be so filed. The provisions of this rule are mandatory and jurisdictional and therefore must be complied with in order to invoke appellate jurisdiction. Hanna v. Homes Insurance Company, 260 S.W.2d 891 (Tex.Civ.App.1953, ref. n. r. e.); Eldridge v. Lake Whitney Enterprises, 231 S.W.2d 466 (Tex.Civ.App.1950); Dellerman v. Trager, 327 S.W.2d 667 (Tex.Civ.App.1959, writ dis.)

Without the filing of a motion showing the existence of good cause for failure to timely file the record, the appeal must be dismissed. We must examine appellant's motion to determine whether or not it has shown good cause to have existed within such sixty-day period why such transcript and statement of facts could not be so filed. Omitting formal parts the motion reads as follows:

'TO SAID HONORABLE COURT:

'Appellant, in the above entitled and numbered cause, would show that it has taken appeal from the judgment of the trial court rendered herein, that it has not filed the transcript and the statement of facts therein with the clerk of this court within the sixty days requirred by the rule; that within this, a reasonable time, and not exceeding fifteen days after the expiration of such sixty day period it makes this motion and shows that good cause existed, within such sixty day period and to this date, why such transcript and statement of facts could not be so filed, viz: That the transcript and statement of facts have both been prepared and were prepared before such sixty day period expired; however, counsel for appellant inadvertently failed to see that the counsel for appellee had read the statement of facts and signed it until such a short time before the sixty day period expired, that there was insufficient time for counsel for appellee to carefully examine the said statement of facts, and said counsel for appellee has agreed to this extension, as evidenced by his signature hereon. Such cause will be removed within fifteen days.

'WHEREFORE, movant prays that this honorable court permit such transcript and statement of facts to be filed at such time and upon such terms as it may be prescribed, giving it at least a fifteen day extension.' (emphasis supplied)

It is the duty of this court to determine its jurisdiction and to take note of the lack of appellate jurisdiction when disclosed by the record. The inadvertent failure of the attorney for the appellant to see that the counsel for the appellee...