Julian v. Carrollton Independent School Dist., 7308

• Decision Date: 04 April 1961
• Docket Number: No. 7308,7308
• Citation: 346 S.W.2d 189
• Parties: John E. JULIAN, Appellant, v. CARROLLTON INDEPENDENT SCHOOL DISTRICT et al., Appellees.
• Court: Texas Court of Appeals

Page 189

346 S.W.2d 189

John E. JULIAN, Appellant, v. CARROLLTON INDEPENDENT SCHOOL DISTRICT et al., Appellees.

No. 7308.

Court of Civil Appeals of Texas, Texarkana.

April 4, 1961.

Shirley W. Peters, Denton, for appellant.

Earl Luna, McCulloch, Ray, Rembert, Luna & Trotti, Dallas, for appellees.

PER CURIAM.

This action originated as a mandamus suit. The appeal is dismissed for want of prosecution.

The provisions of Rule 414, Vernon's Ann. Texas Rules of Civil Procedure required that appellant's brief be filed on or before November 12, 1960. Some 58 days after that deadline, on January 9, 1961, the appellees filed a motion to dismiss the appellant's appeal for want of prosecution. The next day, January 10th, the appellant filed a motion to extend the time for filing his brief. To excuse the delay the motion stated counsel for appellant was absent from his office for several days in the latter part of October, 1960, and in his absence his file on this case was inadvertently misplaced, causing him to overlook preparation and filing of the brief within the allotted time.

In addition, the motion for extension calls attention to the nature of the action. The suit was brought as a class action by John E. Julian, a taxpayer in the Carrollton Independent School District, against the District and its Tax Assessor and Collector and other officials, to compel them to assess for tax purposes all property within the district subject to taxation for the year 1960, and to assess for tax purposes all property subject to taxation theretofore omitted from assessment in the years 1956, 1957, 1958, 1959, and 1960. The trial court sustained a motion to abate the suit, and dismissed it upon finding that there was no justiciable issue or controversy between Julian and the school district and its officials. Appellant suggests such order was fundamental error now apparent on the face of the record, and the appeal should not be dismissed because appellant failed to file his brief within the time limit of Rule 414.

The excuse that confusion in the office of appellant's counsel caused him to overlook filing the brief in the prescribed time is not good cause excusing failure. See 4 Tex.Jur. (2) 138, Sec. 633, and cases there cited dealing with causes that excuse a tardy filing.

The duty to examine a record for fundamental error in the absence of briefs may be conceded to have been required prior to the advent of the Rules of Civil Procedure and repeal of Art. 1837, Vernon's Ann.Tex.Civ.St. See 4 Tex.Jur. (2) 127, Sec. 612. Presently, Rule 415 authorizes a dismissal of an appeal for want of prosecution, but at the same time grants the appellate court authority to consider late briefs even in the absence of good cause. The rule is silent on examination of the record for fundamental error as a prerequisite to dismissal for want of prosecution. Repealed Art. 1837 required Courts of Civil Appeal to consider errors apparent on the face of the record in the absence of an assignment. The repeal of the article constricted the legal concept of fundamental error, and many errors formerly treated as fundamental may not be so regarded now. See cases next cited.

The outer limits of fundamental error have not been fixed, but an error is now said to be truly fundamental when it establishes by judgment rights or relief adverse and in conflict with the public interest as declared by the Constitution or by legislative enactment, or when a complete record reveals the trial or appellate court is without jurisdiction of the subject matter or procedure in litigation, or the parties to the action have no justiciable interest in the issues litigated. See Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979; McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265; Holland v. Taylor, 153 Tex. 433, 270 S.W.2d 219; Wagner v. Warnasch, 156 Tex. 334, 335, 295 S.W.2d 890. Logically it follows that in the absence of a brief the record should be examined for fundamental error as the same is now recognized.

The judgment of the trial court finding the appellant has no justiciable interest in the issue tendered for decision by the pleading is not directly adverse to public interest as that interest is expressed in the Constitution, or by statutory law. Nor does the record show a want of jurisdiction of the subject matter of the suit by the trial court. Error, if any, in reaching the judgment entered is not fundamental.

Apparently the trial judge abated the suit because it presented for determination only the...