Stidham v. Cicero Smith Lumber Co.

• Decision Date: 28 November 1923
• Docket Number: (No. 2218.)
• Citation: 257 S.W. 628
• Parties: STIDHAM et al. v. CICERO SMITH LUMBER CO. et al.
• Court: Texas Court of Appeals

257 S.W. 628

STIDHAM et al. v. CICERO SMITH LUMBER CO. et al.

(No. 2218.)

Court of Civil Appeals of Texas. Amarillo.

November 28, 1923.

Rehearing Denied January 9, 1924.

Appeal from District Court, Hall County; J. V. Leak, Judge.

Action by the Cicero Smith Lumber Company against C. Z. Stidham and others. From judgment for plaintiff and certain of defendants against named defendant and certain others, the named defendant and such others appeal. Appeal dismissed.

Fires & Williams, of Childress, and Elliott & Moss, of Memphis, for appellees.

RANDOLPH, J.

Suit was filed in the district court of Hall county by Cicero Smith Lumber Company against C. Z. Stidham and many others as defendants, to recover upon a promissory note and an open account. The note was executed by the Farmers' Telephone Association, by C. Z. Stidham, president, J. H. Middleton, secretary, and Fred Boone, F. T. Wallace, H. W. Paschall, and R. S. Wansley, directors, hereinafter known as the "promoting defendants." The other defendants not herein specially named, except as grouped to identify their status, in the record, and known as the "subscribing defendants," were sued as partners with the named defendants, and by virtue of a certain instrument designated a "declaration of trust." The plaintiff recovered judgment against all of the defendants, and those defendants denominated subscribing defendants were also granted judgment over against the promoting defendants, and from such judgment the promoting defendants have appealed to this court.

Appellees have moved in this court to strike out the brief of appellants filed herein for the reasons that the appellants failed to file in the trial court a copy of their brief as required by the statutes and failed to serve appellees with a copy of their brief until too late for them to file a proper reply.

The parties to the suit entered into a written agreement on file in this cause that appellants might file their briefs out of time required by law and the rules of the appellate courts, and that they might file such brief at any time "within 40 days before submission." This we interpret to mean that appellants could file their briefs any time prior to 40 days before the date set for the submission of the case in this court. On October 9, 1923, appellants filed copies of their brief in this court; thereafter the cause was set down for submission on November 21, 1923. No notice of the filing of the brief in this court was in any way conveyed to appellee and no copy of the brief was ever filed in the trial court. Appellee's attorneys called upon the clerk of the trial court to know if any brief had been filed, and was informed that none had been filed in the case. On November 3, 1923, appellants delivered or caused to be delivered to attorneys for appellees, subscribing defendants, a copy of their brief — 17 days before the date set for submission. At that time appellee Cicero Smith Lumber Company's attorneys had the record in the case and were unable to complete their work in the preparation of their brief until November 16, 1923, when said record was then delivered to attorneys for appellees, subscribing defendants, and they then had four days in which to prepare and file in this court their brief in answering appellant's brief. The last-named appellees claimed that they were materially injured by the appellant's failure to give them such notice as would enable them to properly reply to it, and they did not attempt to do so. Appellees had the right, even under the signed agreement, to expect that a copy of appellant's brief would be filed in the trial court. In lieu of such filling in the trial court, if appellants had notified appellees that they had filed their briefs in this court, appellees could then have obtained the record in time to have briefed the case in reply. The attorneys for appellant and appellees, the subscribing defendants, lived in the same town, and why they did not give even a verbal notice of such filing in...