Johnston Sales Co. v. Lizana, 15286

• Citation: 508 S.W.2d 693
• Decision Date: 13 February 1974
• Docket Number: No. 15286,15286
• Parties: JOHNSTON SALES COMPANY, Appellant, v. Henry LIZANA and Willie Lizana d/b/a Johnny's Garage, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 693

508 S.W.2d 693

JOHNSTON SALES COMPANY, Appellant, v. Henry LIZANA and Willie Lizana d/b/a Johnny's Garage, Appellee.

No. 15286.

Court of Civil Appeals of Texas,

San Antonio.

Feb. 13, 1974.

Rehearing Granted March 6, 1974.

Peter N. Plumb, San Antonio, for appellant.

Charles L. Smith, San Antonio, for appellee.

On Motion for Extension of Time to File Appellant's Brief.

PER CURIAM.

On January 28, 1974, appellant filed its motion for an extension of time to file its brief, which was due to be filed on or before January 14, 1974. As good cause, appellant's attorney averred that '. . . due to an extremely heavy work load and the resignation of one of his secretaries as well as physical illness due to the flu and a back condition . . .' he had been unable to timely complete said brief. On January 30, 1974, the brief was tendered to our clerk. Such motion has been controverted by appellees wherein it is asserted that good cause has not been shown.

Rule 414 ¹ provides that appellant's brief shall be filed within thirty days after the record is filed, and that Upon good cause shown, the Court of Civil Appeals May grant an extension of time. Such rule standing alone would hardly vest our Court with any discretion to allow an extension of time, except upon a showing of good cause. However, Rule 415, which authorizes the Court to dismiss the appeal for want of prosecution where appellant has failed to timely file his brief or show good cause with no material injury to appellee, provides by clear and unambiguous terms that the Court may decline, in any event, to dismiss the appeal. Hoke v. Poser,384 S.W.2d 335 (Tex.1964). Thus, the Courts of Civil Appeals are granted a broad discretion regarding the time for filing of briefs in said courts. See Burns v. Allied Mills, Inc., 468 S.W.2d 119 (Tex.Civ.App.--Texarkana 1971, no writ); Rodriguez, v. Flores, 426 S.W.2d 285 (Tex.Civ.App.--San Antonio 1968, no writ); Yancy v. Texas General Indemnity Co., 417 S.W.2d 643 (Tex.Civ.App.--Tyler 1967, no writ).

In keeping with the objective and spirit of the rules, this broad discretion is exercised by us in liberally construing good cause for an extension of time within which to file a brief where the motion for extension is filed within the time limits set forth in Rule 414 for filing said briefs. However, where the motion is not filed within such time limits, we strictly require good cause to be shown. This distinction is necessary if we are to submit cases with expedition and dispatch.

Rule 412 requires cases which have not been advanced to be set for submission at least four weeks ahead of the date of submission. Therefore, in late January, 1974, our trial docket was examined to determine the cases ready for submission on March 6, 1974. This examination showed that appellant's brief had not been filed, nor was there then pending a motion for extension of time. The transcript was in the possession of the attorney for appellant, and upon request to return same, said attorney advised our deputy clerk that he was working on his brief. Upon being advised by the deputy clerk that the time for filing same had expired, appellant's attorney stated that he understood that he had sixty days within which to file said brief and would promptly file a motion for extension of time. This was done.

The motion is in very general terms and somewhat contradictory. It fails to set forth good cause for failing to timely file said brief ² and wholly fails to set forth any cause for not filing the motion for extension of time within the thirty-day period. We, therefore, overrule said ...