Lueck v. Carter
| Decision Date | 02 April 1971 |
| Docket Number | No. 17188,17188 |
| Citation | 466 S.W.2d 90 |
| Parties | Frank C. LUECK, Appellant, v. Albert W. CARTER et al., Appellees. |
| Court | Texas Court of Appeals |
Hyde, Tucker, Gano, Alexander & Brown, Dallas, for appellant.
Hopkins & Kelsey, Denton, for appellees.
This is an appeal from an order overruling the defendant's plea of privilege. The order appealed from recited that it was rendered and entered on July 27, 1970.
We dispose of the appeal by dismissing it for want of prosecution because appellant did not present his initial briefs to the clerk of this court for filing until the day before the day the case was set for submission.
The time for filing the statement of facts and transcript was extended by order of this court until September 16, 1970, and both such instruments were actually filed in this court on September 15, 1970.
The litigants made no agreement providing for late filing of briefs. Rule 414, T.R.C.P., requires that the appellant's brief be filed within 30 days after the statement of facts and transcript are filed in the Court of Civil Appeals.
This appeal has long been set for submission on March 19, 1971. On September 15, 1970, the clerk of this court by letter to attorneys for both sides notified each of them that the case was set for submission on March 19, 1971. The appellant's brief was not tendered to the clerk of this court for filing until March 18, 1971, which was the day before submission date, and which date was a little over five months after the Rules of Civil Procedure required such brief to be filed.
On March 19, 1971, the appellees filed herein a motion to strike appellant's brief and to dismiss this appeal because of the late filing of appellant's brief.
We are convinced that the file in this case does not reflect fundamental error.
The appellant here was not entitled as a matter of right to file his initial briefs late. To get permission to file his briefs late he had the burden of showing that good cause existed for permitting him to file them late right on up to the time that such briefs were tendered to the clerk for filing. The appellant also had the additional burden of rebutting the presumption that appellees suffered material injury by reason of such late filing. See Black v. Aldrich, 339 S.W.2d 340 () and Rule 415, T.R.C.P.
In this case appellant did not carry his burden in either respect.
He has made no effort to rebut the presumption that appellees would sustain injury if appellant was permitted to file the appellant's brief on the day before submission date.
A number of Texas cases hold that where appellant's brief is filed so late that the appellee is by virtue of such late filing denied his affirmative right to seasonably file a brief in reply to such appellant's brief, it will be presumed that the appellee has been caused to suffer consequential injury by such late filing. See on this Hobbs v. Jackson, 313 S.W.2d 348 (); Sneed v. Moore, 330 S.W.2d 472 (); and Mayrath v. Mayrath, 335 S.W.2d 873 ().
During argument at submission time appellant's counsel stated that he had no Legal excuse for not timely...
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Manges v. First State Bank & Trust Co.
...suffered no material injury by late tender of their brief. Raney v. Mack, 504 S.W.2d 527 (Tex.Civ.App. Texarkana 1974, no writ); Lueck v. Carter, 466 S.W.2d 90 (Tex.Civ.App. Fort Worth 1971, no writ); Franke v. Franke, 373 S.W.2d 891 (Tex.Civ.App. Corpus Christi 1963, no Rule 414, T.R.C.P.,......