Dellerman v. Trager

• Decision Date: 02 September 1959
• Docket Number: No. 19536,19536
• Parties: William DELLERMAN, Appellant, v. Robert TRAGER et ux., Appellees.
• Court: Texas Court of Appeals

Page 667

327 S.W.2d 667

William DELLERMAN, Appellant, v. Robert TRAGER et ux., Appellees.

No. 19536.

Court of Civil Appeals of Texas, San Antonio.

Sept. 2, 1959.

Rehearing Denied Sept. 23, 1959.

Pfeiffer & Gittinger, San Antonio, for appellant.

Emanuel Gassman, San Antonio, for appellees.

MURRAY, Chief Justice.

This cause is before us upon an application by appellant for an enlargement of time within which to file the transcript and statement of facts.

Appellant's motion for new trial was overruled by the trial court on May 21, 1959, and the sixty-day period for filing the record in this Court expired on July 20, 1959. All dates herein referred to accrued during the year 1959, so we will not hereafter repeat the year. On July 13 appellant filed this motion for an enlargement of time within which to file the record. On July 20 appellees filed a reply to such motion, contesting the granting of it. On August 3 appellant answered appellees' contest. On August 5 appellees replied to this answer. On August 6 appellant replied to appellees' reply.

The salient facts are not disputed and are as follows:

Appellant did not make up his mind to appeal this case until June 16, at which time he so notified his attorney. Neither he nor his attorney made any effort to contact the court reporter and order the statement of facts until thirty-eight days of his sixty-day period had expired. Appellant's attorney looked for the reporter at his office and at his home, but did not find him because he had left on his vacation on July 1. On July 6, the parties agreed upon a statement of facts, but appellant wanted to see the reporter to ascertain if there were any necessary additions to this agreed statement of facts. He contemplated that this would not cover more than one or two pages.

Appellant does not show that he has, up to the present time, directed the reporter to make up a statement of facts, or that he has told him what he wanted in this additional statement of facts. Rule 377(c), T.R.C.P.

Appellant contends that he should be allowed thirty days within which to make up his mind whether or not he desires to appeal. In this he is wrong. Under the provisions of Rule 386, T.R.C.P., it is contemplated that an appellant will use due diligence in preparing and filing the record with the Clerk of the Court of Civil Appeals. This he must do within sixty days, or show 'good cause' why the record could not have been filed during that period. The fact that he couldn't make up his mind to appeal is not such 'good cause.'

Appellant further states that he could not have ordered a partial statement of facts from the reporter prior to July 6, because he did not know just what part of the record the parties would be unable to agree upon. Where an appellant delays directing the reporter to prepare a statement of facts in the hope that he and appellee will be able to agree upon a statement of facts, he does so at his own risk, and if for this reason he is unable to file the record within the sixty-day period it is due to his own lack of diligence, and he is unable to show 'good cause' why the record could not have been filed during the sixty-day period.

The burden is upon appellant to show by sworn statement that 'good cause' existed during the sixty-day period allowed by Rule 386, supra, why the record could not have been filed with the Clerk of this Court within that period. It is true that after letting some thirty-eight days of his sixty-day period expire he could not contact the court reporter, but this falls far short of showing that if he had acted promptly he could not have secured a statement of facts from the reporter before he left upon his vacation. Thomas v. International Harvester Co., Tex.Civ.App., 321 S.W.2d 650; Couch v. City of Richardson, Tex.Civ.App., 313 S.W.2d 949; Gee v. Smith, Tex.Civ.App., 294 S.W.2d 415; Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587; Wigington v. Parker Square State Bank, Tex.Civ.App., 321 S.W.2d 334.

The Court of Civil Appeals cannot arbitrarily grant an appellant an enlargement of time for filing the record. The provisions of Rule 386, T.R.C.P., are mandatory and jurisdictional and when an appellant fails to show 'good cause' why the record could not have been filed during the sixty-day period, the Court has no jurisdiction to grant him an enlargement of time within which to file his record in the Court of Civil Appeals. Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587, reversing Matlock v. Matlock, Tex.Civ.App., 245 S.W.2d 536; Crawford v. Crawford, Tex.Civ.App., 256 S.W.2d 875; Ortiz v. Associated Employers Lloyds, Tex.Civ.App., 294 S.W.2d 880; Root v. Hester, Tex.Civ.App., 309 S.W.2d 480; Rhodes v. Turner, Tex.Civ.App., 164 S.W.2d 743; Rule 5, T.R.C.P.

The motion will be in all things overruled.

POPE, Justice.

The majority opinion holds that, instead of sixty days, appellant had only forty days in which to file his record. This is so, because the opinion holds that when a court reporter goes on vacation during the sixty-day appeal period the appellant must, at his risk, get the record completed and filed before the reporter leaves. This is not the law, nor a sound interpretation of the Rule.

The majority has indiscriminately cited cases which are purely jurisdictional and those which involve the failure to show good cause. There is a difference. In instances where the appellant files nothing until after the latest time required by the rules, the Court is without jurisdiction even to pass upon good cause. Such is the case when nothing is done within the fifteen-day period after the sixty-day filing time. Rule 386, Texas Rules of Civil Procedure; Lane v. Fair Stores, 150 Tex. 566, 243 S.W.2d 683; Root v. Hester, Tex.Civ.App., 309 S.W.2d 480, 481; Crawford v. Crawford, Tex.Civ.App., 256 S.W.2d 875. This is not a case wherein the appellant actually had the statement of facts but through neglect failed to file it within the sixty-day period. Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587; Thomas v. International Harvester Company, Tex.Civ.App., 321 S.W.2d 650; Ortiz v. Associated Employers Lloyds, Tex.Civ.App., 294 S.W.2d 880.

The authorities cited by the majority do not persuade me that they control this case. In Couch v. City of Richardson, Tex.Civ.App., 313 S.W.2d 949, nothing was done about the statement of facts during the sixty-day filing period nor until eightyseven more days had expired. In Gee v. Smith, Tex.Civ.App., 294 S.W.2d 415, the showing of good cause failed because the court reporter in his attached affidavit stated that he could have prepared the...