Parks v. Purnell

• Decision Date: 26 June 1940
• Docket Number: No. 7517.,7517.
• Citation: 141 S.W.2d 585
• Parties: PARKS v. PURNELL et al.
• Court: Texas Supreme Court

Page 585

141 S.W.2d 585

PARKS v. PURNELL et al.

No. 7517.

Supreme Court of Texas.

June 26, 1940.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action between Laura Parks and others and Mrs. Ginevra L. Purnell and husband. To review a judgment of the Court of Civil Appeals, 120 S.W.2d 895, dismissing a writ of error from district court, Laura Parks and others bring error.

Reversed and remanded.

J. L. Goggans, of Dallas, for plaintiffs in error.

Locke, Locke, Stroud & Randolph, Hubert D. Johnson, and Maurice E. Purnell, all of Dallas, for defendants in error.

CRITZ, Justice.

This case was tried in the district court of Dallas County, Texas, and appealed to the Dallas Court of Civil Appeals. On equalization of the dockets of the several courts of civil appeals it was transferred to the El Paso court where the appeal was dismissed on a ruling that the transcript and statement of facts had not been filed in the Dallas court within the time provided by Art.1839, R.C.S.1925, as amended by Acts 43d Legislature, ch. 67, p. 142, 120 S.W.2d 895. The opinion of the El Paso court fully states the facts in regard to what occurred with reference to the filing of this record in the Dallas court. We here reproduce such statement as follows: "Defendants in error move to dismiss this appeal because the transcript was not filed in the Dallas Court of Civil Appeals within the time required by the Acts of the Forty-third Legislature, Chapter 67, p. 142, Art.1839, Vernon's Annotated Statutes. In this connection the record discloses the following: Judgment was rendered November 20, 1936, and entered of record three days later; petition for writ of error and writ of error bond were filed May 17, 1937; citation in error issued and was served May 21, 1937; on July 17, 1937, plaintiffs in error filed motion in the Dallas Court of Civil Appeals for an extension of sixty days within which to file the record in that court; on the same day that court entered an order extending the time for such filing for sixty days after the time allowed by law; on September 10, 1937, plaintiffs in error filed a second motion for an extension of time, and on September 18, 1937, the Dallas Court granted an extension until the 27th day of November, 1937; on November 23, 1937, plaintiffs in error filed a third motion asking for an additional extension of time, and on the same day the time for filing was extended by the Dallas Court to December 10, 1937. In each of the foregoing motions the plaintiffs in error set up the illness of the court reporter and inability to prepare the statement of facts as grounds for the extensions sought. The endorsement of the clerk of the trial court shows the transcript was applied for by counsel for plaintiffs in error on December 1, 1937, and delivered to him on December 6, 1937. On December 10, 1937, the record was filed in the Dallas Court of Civil Appeals, which was more than one year after the judgment in the trial court was rendered and entered. Later the appeal was transferred to this Court by an equalization order of the Supreme Court."

Before proceeding further we deem it expedient to quote the above statute. It is as follows: "In appeal or writ of error the appellant or plaintiff in error shall file the transcript and statement of facts with the Clerk of the Court of Civil Appeals within sixty (60) days from the final judgment or order overruling motion for new trial, or service of the writ of error; provided, by motion filed before, at, or within a...