Gibbs v. Eastham

• Decision Date: 07 October 1911
• Citation: 139 S.W. 1166
• Parties: GIBBS v. EASTHAM.
• Court: Texas Court of Appeals

Page 1166

139 S.W. 1166

GIBBS v. EASTHAM.

Court of Civil Appeals of Texas. Amarillo.

October 7, 1911.

Appeal from District Court, Haskell County; Cullen C. Higgins, Judge.

Action between J. D. Gibbs and L. C. Eastham. From the judgment, Gibbs appeals. Eastham moves to dismiss the appeal, and Gibbs moves to require the clerk to file briefs. First motion overruled; second, sustained.

Kirby & Davidson and Helton & Merchison, for appellant. Dean, Humphrey & Powell and H. G. McConnell, for appellee.

GRAHAM, C. J.

Final judgment was rendered in this cause in the district court of Haskell county on November 30, 1910. The trial court adjourned for the term on December 23, 1910. Appeal bond was approved and filed below on January 6, 1911. The clerk of the trial court was applied to for a transcript in the cause January 6, 1911, and, having completed same, delivered it to appellant's counsel on February 24, 1911. The transcript, together with the statement of facts, was filed in the Court of Civil Appeals for the Second Supreme Judicial District on February 25, 1911, and by order of the Supreme Court of Texas was transferred from the Court of Civil Appeals for the Second Supreme Judicial District to this court, where the cause was filed and docketed on July 31, 1911. On September 25, 1911, appellant not having filed briefs in either the trial court, the Court of Civil Appeals for the Second Supreme Judicial District, or this court, appellee filed in this court on that day his motion to dismiss the appeal in this cause: First, because appellant had failed to file briefs in the trial court five days before filing the transcript in the appellate court; second, because at the time of filing the motion appellant had not filed brief in the trial court; third, because at the time of filing the motion appellant had not filed briefs in this court or in the Court of Civil Appeals for the Second Supreme Judicial District; and, fourth, because at the time of filing the motion appellant had not furnished counsel for appellee a copy of brief for appellant in this cause. Appellee's motion to dismiss was submitted in this court on October 2, 1911, and on October 5, 1911, appellant tendered to this court four copies of his brief, one copy of which bears the certificate of the clerk of the trial court, showing that a copy of appellant's brief was filed in that court on October 3, 1911, and notice of said filing, as required by law, given appellee's counsel, and on October...