Patterson v. Hall

• Court: Texas Supreme Court
• Writing for the Court: CALVERT
• Citation: Patterson v. Hall, 430 S.W.2d 483 (Tex. 1968)
• Decision Date: 05 June 1968
• Docket Number: No. B--638,B--638
• Parties: James PATTERSON et al., Petitioners, v. Billie Barbara HALL et vir, Respondents.

Page 483

430 S.W.2d 483

James PATTERSON et al., Petitioners, v. Billie Barbara HALL et vir, Respondents.

No. B--638.

Supreme Court of Texas.

June 5, 1968.

Rehearing Denied July 2, 1968.

Barkley, Cutcher & Alderson, James L. Cutcher, Taylor, Bryan, Suhr, Bering & Bailey, James P. Bailey, Houston, Graves, Dougherty, Garwood, Hearon, Moody & Gee, Austin, for petitioners.

Holloway & Holloway, Sterling Holloway, Austin, W. T. Barber, Charles R. Ramsey, Tom G. Oliver, San Marcos, for respondents.

CALVERT, Chief Justice.

Billie Barbara Hall and husband, Nathan Hall, respondents, brought this suit against petitioners and others for title to and possession of 812.5 acres of land located in Hays County. Trial to a jury resulted in a verdict and judgment for the plaintiffs. Some of the defendants, our petitioners here, were appellants in the court of civil appeals and they will hereafter be referred to in this opinion as appellants. The court of civil appeals affirmed. 421 S.W.2d 921. We reverse the judgment of the court of civil appeals and remand the cause to that court for further consideration.

The court of civil appeals overruled a motion, timely filed by the appellants, to extend the time for filing a statement of facts in that court; and because it then had no statement of facts before it for examination and consideration of the evidence adduced at trial, the court gave the points of error before it only limited review. One of the points of error presented in the application for writ of error asserts, in substance, that the court of civil appeals used an erroneous rule of law in evaluating and overruling appellants' motion for an extension of time for filing the statement of facts. We agree.

There are certain undisputed facts which are relevant to the problem to be considered. The trial court's judgment was entered on November 28, 1966. Appellants' amended motion for new trial was overruled on February 1, 1967, and the order contained notice of appeal by all defendants. On April 17, 1967, the 75th day after the date on which notice of appeal was first given, appellants filed their extension motion in the court of civil appeals.

Rule 386 ¹, provides:

'In appeal or writ of error the appellant shall file the transcript and statement of facts with the clerk of the Court of Civil Appeals within sixty days from the rendition of the final judgment or order overruling motion for new trial, or perfection of writ of error; provided, by motion filed before, at, or within a reasonable time, not exceeding fifteen days after the expiration of such sixty-day period, showing good cause to have existed within such sixty-day period why said transcript and statement of facts could not be so filed, the Court of Civil Appeals may permit the same to be thereafter filed upon such terms as it shall prescribe.'

By clear language, the rule authorizes a court of civil appeals to extend the time for filing the transcript and the statement of facts when motion is made within seventy-five days after a final judgment is rendered or a motion for new trial is overruled showing 'good cause to have existed within such sixty-day period why said transcript and statement of facts Could not be so filed' within the sixty-day period. ²

It is apparent from the court of civil appeals' opinion that, in overruling appellants' extension motion, the court was laboring under the mistaken belief that it did not have discretion to grant the motion. Indeed, the court expressly stated that if it did have such authority, it 'would, without hesitation, grant the motion'. 421 S.W.2d, at 929. The court's holding that it did not have discretion to grant the motion was largely based upon its interpretation of Rule 377(c) and our opinion in Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587 (1952). The court did not regard our per curiam opinion in Wigley v. Taylor, Tex., 393 S.W.2d 170 (1965), in which we indicated that a court of civil appeals did have discretion in passing on an extension motion in a similar situation, as resolving the question.

In Matlock, the transcript and statement of facts were delivered to the attorney for the appellant in ample time for filing within the sixty-day period prescribed by the rule. A sworn motion to extend the time for filing was filed within seventy-five days. The 'good cause' for the extension, as set out in the motion, was that appellant's attorney understood that his secretary had delivered the transcript and statement of facts to the Railway Express Company for transmission to the clerk of the court of civil appeals, and that he discovered only after expiration of the sixty-day period that the secretary had not done so. The court of civil appeals, testing the issue of good cause by a rule of bad faith and careless indifference on the part of counsel for appellant, granted the motion. 245 S.W.2d 536, at 544. We held that the court had used an erroneous rule of law in determining the issue of good cause, and held further that, as a matter of law, the motion failed to show good cause why the record Could not have been filed within the sixty-day period. In the course of our opinion, we said that the question before us, in the particular case, was not one of abuse of discretion by the court of civil appeals, but we did Not say that the issue of good cause could Never be addressed to the discretion of such courts.

This is not a case, as was Matlock, in which the statement of facts was in the possession of appellant's attorney well before expiration of the sixty-day period. Here, the appellants did Not have the statement of facts in their possession within the sixty-day period, and they Could not, therefore have filed the same within that period. But the court of civil appeals held that inasmuch as appellants did not show that they Could not have obtained the statement of facts in time for filing within the sixty-day period by promptly requesting the court reporter to prepare it after they gave notice of appeal, they had failed, as a matter of law, to show that they could not have filed the instrument within the required time. The holding was based upon the provisions of Rule 377(c) which inferentially require an appellant, after giving notice of appeal, Promptly to request preparation of a statement of facts.

Rule 377(c) does not fix the outer limits of prompt action...