Montgomery Ward & Co., Inc. v. Dalton
| Decision Date | 30 July 1980 |
| Docket Number | No. 7010,7010 |
| Parties | MONTGOMERY WARD & COMPANY, INC., Appellant, v. Douglas T. DALTON and Ercel O. Dalton, Appellees. |
| Court | Texas Court of Appeals |
The Appellant filed the record in this case on June 6, 1980. Appellant's brief was due on July 6, 1980 which was a Sunday and gave Appellant until the following day to file its brief. Rules 4 and 414, Tex.R.Civ.P. On July 2, 1980 Appellant filed a Motion for Extension of Time to File Brief, requesting an additional thirty days for the filing of its brief. The motion, which is not sworn to, states:
That the attorney for the Appellant has had other pressing commitments which have required immediate attention and as a result thereof time which the attorney has allocated for the preparation of the brief in this cause was, of necessity, consumed by other matters.
The Appellees have filed a Motion to Dismiss Appeal and a Brief in support thereof. The Appellant has made no reply.
Rule 414, Tex.R.Civ.P. provides that "upon good cause shown, the Court of Civil Appeals may grant either or both parties further time for filing their respective briefs, and extend the time for submission of the case." This case has not been set for submission and the granting of the extension would not delay its submission. Rule 415, Tex.R.Civ.P. permits the Court to dismiss the appeal where the Appellant's brief is not timely filed unless good cause is shown for such failure and Appellee has not suffered material injury.
For facts to be established in support of a Motion for Extension of Time on an appeal either an affidavit or some other legitimate form of evidence that can be considered by an Appellate Court must be filed. Hutcherson v. Hinson, 543 S.W.2d 719 (Tex.Civ.App. Tyler 1976, writ ref'd n.r.e.). In this case we have a signed motion which is not sworn to and no other evidence is presented.
To establish "good cause" for an extension of time to file a brief, an Appellant must show that failure to timely file the brief was prevented by some event beyond the immediate control of the litigant which was to some extent unforseeable, and that Appellees have not suffered material injury by the late tender of Appellant's brief. Manges v. First State Bank & Trust Co., 572 S.W.2d 104 (Tex.Civ.App. Corpus Christi 1978, no writ). Most reasons or excuses which have been offered as a basis for "good cause" have been rejected. See: Manges v. Pool Company, 581 S.W.2d 540 (Tex.Civ.App. Dallas 1979, no writ); Continental Oil Company v. Dobie, 552 S.W.2d 183 (Tex.Civ.App. Corpus Christi 1977, writ ref'd n.r.e.); Andrews v. Twin Montana, Inc., 547 S.W.2d 54 (Tex.Civ.App. Fort Worth 1977, no writ); Lee v. Owen, 404 S.W.2d 84 (Tex.Civ.App. San Antonio 1966, no writ). In one recent case the excuse was accepted on Motion for Rehearing. Johnston Sales Company v. Lizana, 508 S.W.2d 693 (Tex.Civ.App. San Antonio 1974, no writ).
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Castillo v. Sears, Roebuck & Co.
...when this case had not yet been set for submission. For these reasons dismissal of the cause would be unwarranted. Montgomery Ward & Co. v. Dalton, 602 S.W.2d 130, 131 (Tex.Civ.App.--El Paso 1980, no writ). Therefore, appellees' motion to dismiss the appeal or affirm the judgment of the tri......
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Collins v. State
...matters in his office" did not satisfy the "good cause shown" requirement for extending time to file a brief); Montgomery Ward & Co., Inc. v. Dalton, 602 S.W.2d 130, 131 (Tex.Civ.App.--El Paso 1980, no writ)(same). The district attorney's motion in this case referenced specific cases that h......
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Coulson v. Lake LBJ Mun. Utility Dist.
...of the "reasonable explanation" standard rather than the more stringent "good cause" standard explained in Montgomery Ward and Company, Inc. v. Dalton, 602 S.W.2d 130 (Tex.Civ.App.--El Paso 1980, no writ). A reasonable explanation requires only a "plausible statement of circumstances indica......