Cooper v. Cadena

• Decision Date: 12 September 1979
• Docket Number: No. 16371,16371
• Citation: 590 S.W.2d 153
• Parties: Harold N. COOPER, M.D., Relator, v. George CADENA, Respondent.
• Court: Texas Court of Appeals

Page 153

590 S.W.2d 153

Harold N. COOPER, M.D., Relator, v. George CADENA, Respondent.

No. 16371.

Court of Civil Appeals of Texas, San Antonio.

Sept. 12, 1979.

Peter N. Plumb, Allison & Plumb, San Antonio, for relator.

Richard L. Josephson, Baker & Botts, Houston, George H. Spencer, Clemens, Spencer, Welmaker & Finck, San Antonio, Lawrence J. Madigan, Moriarty & Madigan, Houston, for respondent.

OPINION

PER CURIAM.

This is an original proceeding in which Relator, Harold N. Cooper, seeks a writ of mandamus ordering Respondent, George Cadena, to prepare a statement of facts in our cause No. 16,279, Harold N. Cooper v. A. E. Bowser et ux. The transcript in No. 16,279 was filed in this Court on March 26, 1979.

Judgment in this case was signed January 25, 1979. Under Rule 386, Tex.R.Civ.P., the transcript and statement of facts were required to be filed in this Court on or before March 26, 1979, unless an extension of time was granted under the provisions of Rule 21c. The transcript was timely filed, but on March 19, 1979, Relator filed his first motion for extension of time within which to file the statement of facts. Attached to this motion was the affidavit of Respondent in which he stated that due to his duties as official court reporter for County Court at Law No. 3, Bexar County, he was unable to prepare the statement of facts within the time prescribed by Rule 386. He added that he was required to give priority to requests for statements of facts in two criminal cases. This Court granted an extension of time to May 16, 1979, the date on which the Respondent assured us in his affidavit that the statement of facts in this case would be ready.

On May 16, 1979, Relator filed his second motion for extension of time, supported by the affidavit of Respondent. In his affidavit, Respondent repeated the statements made by him in support of the first motion for extension of time, but added that, in addition to the two criminal cases, he was also engaged in preparation of a statement of facts in another civil case. This Court granted an extension of time to June 15, 1979.

The third motion for extension of time was filed on June 18, 1979, supported by the affidavit of Respondent which again referred to the two criminal cases and the civil case mentioned in his affidavit attached to the second motion. This Court granted an extension to July 13, 1979.

The granting of the third extension resulted in the filing of a fourth motion for extension on July 13, 1979. Respondent's affidavit attached to the fourth motion again assured the Court that Respondent was engaged in the preparation of statements of facts in the two criminal cases referred to in the first three motions and in the civil case mentioned in the second and third motions. The time was extended to August 13, 1979.

The fifth motion for extension of time was filed on August 10, 1979, seeking yet another extension. This motion made known to this Court that Relator was unable to secure an affidavit from Respondent because Respondent was on vacation. This motion was accompanied by a petition for mandamus.

The Court granted leave to file the...