San Antonio & A. P. Ry. Co. v. Holden

• Decision Date: 11 January 1900
• Citation: 54 S.W. 751
• Parties: SAN ANTONIO & A. P. RY. CO. v. HOLDEN.
• Court: Texas Supreme Court

Page 751

54 S.W. 751

SAN ANTONIO & A. P. RY. CO. v. HOLDEN.

Supreme Court of Texas.

January 11, 1900.

Certified questions from court of civil appeals of Third supreme judicial district.

Action between C. W. Holden and the San Antonio & Aransas Pass Railway Company. From a judgment in favor of plaintiff, defendant appealed to the court of civil appeals, where the appeal was dismissed. On motion for rehearing. Questions certified to the supreme court.

A. W. Houston and Baker & Ross, for appellant.

GAINES, C. J.

The appeal was perfected in this case on June 7, 1899. A copy of appellant's brief was filed in the office of the clerk of the district court in which the case was tried on the 28th day of August next thereafter, and on the 30th of the same month the transcript was filed with the clerk of the court of civil appeals. A motion was made to dismiss the appeal because of the failure of appellant's counsel to file its brief in the office of the clerk of the district court five days before filing the transcript in the court of civil appeals, as is prescribed by article 1417 of the Revised Statutes. The appellant resisted the motion, but, as found by the court of civil appeals, showed no sufficient excuse for the failure to file the brief the full five days before filing the transcript. The motion was sustained, and the cause dismissed; but, a motion for a rehearing having been filed, the court of civil appeals certified for our determination the following questions: "(1) Does the language of article 1417 of the Revised Statutes. `not less than five days before the time of filing of the transcript in the court of civil appeals,' mean not less than five days before the last day permitted by law for filing the transcript in said court, or does it mean not less than five days before the transcript is actually filed? (2) When the appellant's brief is not filed in the district court within the time prescribed by statute, and a timely motion is made by the appellee to dismiss the appeal on that account, is he entitled to have the motion sustained, and the appeal dismissed, unless the appellant furnishes a reasonable excuse for not having filed his brief within the time required, and, in addition thereto, it is made to appear that no injury will result to appellee from such failure? (3) Did this court commit error, under the facts stated above, in sustaining a motion to dismiss the appeal in this case?" The foregoing is but a brief outline of the facts upon which the court of civil appeals propound the questions. Other facts stated in their certificate may be mentioned in course of this opinion.

It is to be noted that under the statute the appellant had 90 days from the day on which his appeal was perfected within which to file the transcript in the office of the clerk of the court of civil appeals, and that in consequence he could lawfully have delayed the filing until the 5th day of September. It is also to be borne in mind that the term of the court of civil appeals extends, under the law, from the first Monday in October of each year until the first Monday of the next succeeding July. In the year 1899 the term of court began on the 2d day of October. The determination of the questions certified requires a construction of article 1417 of the Revised Statutes, and of rule 39 for the government of the courts of civil appeals (20 S. W. ix.). They are as follows:

"Art. 1417. Not less than five days before the time of filing of the transcript in the court of civil appeals, the appellant or plaintiff in error shall file with the clerk of the district court a copy of his brief, which shall be by the clerk deposited with the papers of the cause, with the date of filing endorsed thereon, and the clerk shall forthwith give notice to the appellee or defendant in error, or his attorney of record, of the filing of such brief, and that in twenty days after such notice the appellee or defendant in error shall file a copy of his brief with the clerk of said court below, and with the clerk of the court of civil appeals four copies."

"Rule 39. The failure of appellant or plaintiff in error to file an assignment of errors and briefs in the lower court and in the appellate court in the time and in the manner prescribed by law and by the rules, shall be ground for dismissing the appeal or writ of error for want of prosecution, by motion made by appellee or defendant in error, as other motions under rule 8, unless good cause is shown why it was not done in the time and manner as prescribed, and that they have been filed at such time and under such circumstances as that the appellee or defendant in error has reasonably not suffered any material injury in the defense of the case in the appellate court. In deciding said motion, the court will give such direction to the case as will cause the least inconvenience or...