Embry v. Bel-Aire Corp.
| Decision Date | 07 November 1973 |
| Docket Number | BEL-AIRE,No. B--4193,B--4193 |
| Citation | 502 S.W.2d 543 |
| Parties | Wesley EMBRY, Petitioner, v.CORPORATION d/b/a Mobilehome Park and Floyd Clark, Respondents. |
| Court | Texas Supreme Court |
Frank T. Ivy, Austin, for petitioner.
Graves, Dougherty, Gee, Hearon, Moody & Garwood, Dan Moody, Jr., Austin, for respondents.
In this case judgment was entered on November 22, 1972, after trial to the court. No motion for new trial was filed. On February 5, 1973, the appellant filed his motion for extension of time in which to file the statement of facts and transcript. This was within the time permitted by Rule 386, Texas Rules of Civil Procedure. The grounds for the motion were that the court reporter had moved to Missouri and would be unable to prepare the statement of facts and 'transcript' within the time allowed by Rule 386. The motion was granted by the Court of Civil Appeals. The statement of facts and the transcript were filed within the extended time. However, the court subsequently set aside its order of extension, and dismissed the appeal for want of jurisdiction, because the appellant had not requested a transcript from the clerk until February 9, 1973, a period of 79 days after rendition of judgment. 497 S.W.2d 466.
In Anzaldua v. Richardson, 279 S.W.2d 169 (Tex.Civ.App.1955, writ ref., n.r.e.), the motion for extension of time to file the statement of facts and transcript was based upon the fact that the statement of facts was not ready. The contention was made that the Court of Civil Appeals lost jurisdiction when the transcript was not filed in time, there being no showing of good cause or request for an extension as to the transcript. In denying this contention, the court interpreted Rule 386 as not requiring a separate filing of parts of the record, and held:
'We hold, therefore, that a timely motion which asserts as grounds for late filing, the fact that the statement of facts for good cause is not ready, is also sufficient reason for the late filing of the transcript, when both instruments are included within the motion, as in this case.'
In Duncan v. Duncan, 371 S.W.2d 873 (Tex.1963), the motion for extension including the statement of facts and transcript was granted. But later, the order of extension was set aside upon the holding that 'good cause' was not shown since the transcript was completed and was in hand before the end of the 60-day period provided in Rule 386. We disagreed, and expressly...
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Oldaker v. Lock Const. Co.
...for extension included, and the granting thereof was effective as to both the transcript and the statement of facts. Embry v. Bel-Aire Corporation, 502 S.W.2d 543 (Tex.1973); Figari, Texas Civil Procedure, 28 Sw.L.J. 248 Appellees' motion to dismiss for want of jurisdiction, or, in the alte......
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McDonald v. Brennan
...cause for the late filing of the statement of facts is a sufficient reason for the late filing of the transcript. Embry v. Bel-Aire Corporation, 502 S.W.2d 543 (Tex.1973). The Appellee's cross-point is The judgment of the trial court is affirmed. ...
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Adams v. H.R. Management and La Plaza, Ltd.
...statement of facts, and a reasonable explanation for extending the time to file the transcript was presented. See Embry v. Bel-Aire Corp., 502 S.W.2d 543, 544 (Tex.1973); Hill Chemicals Co. v. Miller, 462 S.W.2d 568, 569 (Tex.1971); Duncan v. Duncan, 371 S.W.2d 873, 874 (Tex.1963); Anzaldua......
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Wallace v. Texas Emp. Ins. Ass'n, 21088
...he is entitled to the extension; if the appellate court denies it, the denial may be reviewed by the supreme court. Embry v. Bel-Aire Corp., 502 S.W.2d 543 (Tex.1973). It does not follow, however, that if the motion is not filed within the fifteen-day period prescribed by rule 21c, the appe......