Sloan v. Passman

• Decision Date: 11 March 1976
• Docket Number: No. 21156,21156
• Citation: 538 S.W.2d 1
• Parties: David L. SLOAN et al., Appellants, v. Sam PASSMAN, Appellee.
• Court: Texas Court of Appeals

Page 1

538 S.W.2d 1

David L. SLOAN et al., Appellants, v. Sam PASSMAN, Appellee.

No. 21156.

Court of Civil Appeals of Texas, Dallas.

March 11, 1976.

GUITTARD, Justice.

I do not agree that new rule 21c of the Texas Rules of Civil Procedure requires a showing of 'reasonable diligence' for extension of the time for filing the record on appeal. The rule requires rather a 'reasonable explanation' for failure to file it within the time prescribed. In my view, 'reasonable explanation' permits a showing that such failure resulted from inadvertence, mistake, or mischance. This interpretation would tend to avoid the harsh result of loss of the right to appeal because of an error of appellant's counsel or his secretary.

Decisions under old rule 386, such as Patterson v. Hall, 430 S.W.2d 483 (Tex.1968), do not illuminate the meaning of rule 21c except to illustrate the injustices which occurred with distressing frequency under the old rule. In Thompson v. Carter, Jones, Magee, Rudberg, Moss & Mayes, 514 S.W.2d 131 (Tex.Civ.App., Dallas 1974, no writ), we called attention to the harshness of the old rule and suggested a more lenient standard for cases in which inadvertent failure to meet the deadline would not result in substantial delay. We may reasonably infer that the supreme court intended to move in this direction by deleting the 'good cause' requirement of rule 386 and substituting the requirement of a 'reasonable explanation.' I cannot accept the majority view that this language was intended to continue the practice exemplified in Patterson v. Hall of making the appellants' rights depend on our determination of the diligence of counsel, as disclosed by affidavits. Such a requirement of diligence would represent too slight a departure from the old requirement of 'good cause' to relieve the harshness of loss of the right to appeal because of an error of counsel.

In my view, the requirement of a 'reasonable explanation' implies no stricter standard than that applicable to avoidance of a default judgment. In Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 125 (1939), the supreme court held that the defaulting defendant must show some excuse, but not necessarily a good excuse, in order to be entitled to a new trial. In explaining what kind of excuse would be acceptable, the court announced the rule that defendant must show that his failure to answer was not intentional or the result of conscious indifference, but was due to mistake or...