Santana Petroleum Corp. v. Go Services, Inc., 5753

• Decision Date: 10 March 1965
• Docket Number: No. 5753,5753
• Citation: 389 S.W.2d 96
• Parties: SANTANA PETROLEUM CORPORATION, Appellant, v. GO SERVICES, INC., Appellee.
• Court: Texas Court of Appeals

Page 96

389 S.W.2d 96

SANTANA PETROLEUM CORPORATION, Appellant, v. GO SERVICES, INC., Appellee.

No. 5753.

Court of Civil Appeals of Texas, El Paso.

March 10, 1965.

Rehearing Denied April 14, 1965.

Tom Parker, Midland, for appellant.

Whitten, Harrell & Wilcox, Josephine M. Jameson, Abilene, for appellee.

CLAYTON, Justice.

This is an appeal from a summary judgment granted the plaintiff-appellee by the District Court of Midland County, Texas. This suit on sworn account was originally filed in Taylor County, Texas, in the year 1963, and by judgment dated July 18, 1963 the defendant's plea of privilege, on motion of the plaintiff, was granted and the cause transferred to Midland County. Plaintiff's First Amended Original Petition was filed in Midland County on April 9, 1964, and thereafter, on October 26, 1964 the plaintiff filed motion for summary judgment with accompanying affidavit, which motion was apparently unanswered, and resulted in summary judgment being granted the plaintiff on November 12, 1964 and filed the same day. The judgment recites that such motion was made in proper form and time, proper service thereof made and the parties were before the court for hearing thereon. Notice of appeal was filed on November 20, 1964, and appeal bond filed. Transcript was filed in this court on January 8, 1965, but no brief has been filed for appellant. On February 18, 1965 appellee filed motion for dismissal of the appeal under Rule 415, Texas Rules of Civil Procedure, for non-compliance with Rule 414. On February 23, 1965 appellant filed its motion that further time be granted for filing brief, which motion reads as follows:

'TO SAID HONORABLE COURT:

'Santana Petroleum Corporation, the appellant in the above entitled and numbered cause, makes this its motion that the court grant further time for filing its brief and copies thereof herein, upon the grounds following: Appellant herein was represented at the trial of this cause by Rush Moody of the firm of Stubbeman, McRae, Sealy, & Laughlin and by Tom Parker, your affiant. After the preparation of the notice of appeal there was confusion as to which firm was to prepare appellant's breif with the result that both firms believed the othere had prepared and sent in appellant's brief. Appellant would further show this honorable court that appellant is appealing from a decree granting a summary judgment and that appellee has not sustained any damage because of a late filing and will not sustain any damage if this motion is granted.

'Premises considered, appellant prays to the court that it enter its order granting appellant until March 10, 1965 to _____ its brief on such terms as the court may order.'

This motion was contested by appellee for the reasons that the appellant has failed to show good cause for failure to timely file brief and has failed to show that appellee has not suffered material injury thereby, and moved that this appeal should be dismissed for want of prosecution as provided in Rule 415, T.R.C.P. Appellee accompanies its motion to dismiss the appeal by citations of numerous authorities to support its position. Quotations from some of these authorities are set out:

Julian v. Carrolloton Independent School District, 346 S.W.2d 189 (Tex.Civ.App., 1961; n.w.h.) (at pages 190 and 191):

'The excuse that confusion in the office of appellant's counsel caused him to overlook filing the brief in the prescribed time is not good cause excusing failure. See 4 Tex.Jur. (2) 138, Sec. 633, and cases there cited dealing with causes that excuse a tardy filing.

'The duty to examine a record for fundamental error in the absence of briefs may be conceded to have been required prior to the advent of the Rules of Civil Procedure and repeal of Art. 1837, Vernon's Ann.Tex.Civ.St. See 4 Tex.Jur. (2) 127, Sec. 612. Presently, Rule 415 authorizes a dismissal of an appeal for want of prosecution, but at the same time grants the appellate court authority to consider late briefs even in the absence of good cause. The rule is silent on examination of...