Archer v. Skelly Oil Company

314 S.W.2d 655, 9 Oil & Gas Rep. 744, 1958 Tex. App. LEXIS 2093

• Court: Court of Appeals of Texas
• Decided: June 2, 1958
• Docket: 6771
• Status: Published

Opinions

PER CURIAM.

On May 7, 1958, following oral arguments of this case before this court on May 5, 1958, appellants filed a motion they styled, “Appellants’ Motion under Rules 428 and 429, Texas Rules of Civil Procedure,” requesting the right to file an affidavit by one of appellants’ attorneys, C. J. Humphreys, with respect to the fact that no oral testimony was heard in the court below on motion by all parties for summary judgment and tendering certain correspondence between the trial judge and the attorneys, together with an original and copy of instruments styled on their covers as “Q. and A. Statement of Facts,” and designated Exhibits G and I. This motion is contested by appellee with cited authorities and written argument. Rules 428 and 429, T.R.C.P. under which appellants seek to file the materials above described provide as follows:

“If anything material to either party is omitted from the transcript or statement of facts, the parties by stipulation, or the trial court, either before or after the record has been transmitted to the appellate court, or the appellate court, on a proper suggestion or on its own initiative, may direct a supplemental record to be certified and transmitted by the clerk of the trial court supplying such omitted matter.”

Rule 429:

“Should it be apparent during the submission or afterwards that the case has not been properly prepared, as shown in the transcript, or properly presented in the brief or briefs, or that the law and authorities have not been properly cited, which will enable the court to decide the case, it may decline to receive the submission; or, if received, may set it aside and make such orders as may be necessary to secure a more satisfactory submission of the case; or should it appear to the court, after the submission of the cause, that the statement of facts has been prepared in violation of the rules, the court may require the appellant to furnish a correct statement of facts, and upon his failure to do so may disregard it. If the violation of the rule be flagrant, the court may disregard the statement of facts altogether, unless counsel for the appellant shall make it appear by affidavit or otherwise that he prepared a statement giving what, in his opinion, he deemed a fair presentation of the evidence, prepared in accordance with the rules, and that he was unable to get it agreed to or approved. Should counsel for appellant show that he has used due diligence to have a proper statement of facts filed, and that the statement of facts as prepared is the result of the fault of the counsel for the opposite party, such as his failure or refusal to agree to a proper statement presented to him, the costs of the statement, if ordered, shall be taxed against the appellee.”

Rule 381 T.R.C.P. provides:

“(a) When an appeal is taken from a judgment rendered in a civil cause tried in either the district court, county court, or county court at law, the party appealing shall have fifty days after the rendition of final judgment or order overruling motion for new trial, if such motion is filed, or perfection of writ of error, within which to prepare and file his statement of facts and bills of exception in the trial court.

“(b) Upon application of the party appealing, the judge of the court may, in term time or vacation, for good cause shown, extend the time for filing such statement of facts and bills of exception, but the time shall not be extended in any case so as to delay the filing thereof beyond the time for filing the transcript, bills of exceptions, and statement of facts in the Court of Civil Appeals, as prescribed by these rules or as extended by said court. As amended by order of Oct. 10, 1945, effective Feb. 1, 1946.”

Exhibits “G” and “I” attached to appellants’ motion are not approved by the parties, their counsel or the trial judge and do not show to have ever been filed in the office of the Clerk of the District Court of Hans-ford County, the court in which the case was tried.

Rule 386 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. As amended by order of October 10,1945, effective Feb. 1,1946.”

Rules 381 and 386 not having been complied with so far as time limits in which to file such materials as those requested, the materials tendered not having been filed with the clerk below and approved by the attorneys and trial judge or any good reason given for failure so to do, we are without authority to grant appellants’ motion. Mossler Acceptance Co. v. Burwell, Tex.Civ.App., 205 S.W.2d 622; Punch v. Gerlach, Tex.Civ.App., 260 S.W.2d 240; Parrish v. Parrish, Tex.Civ.App., 214 S.W.2d 700; Seaboard Fire & Marine Ins. Co. v. Halbert, Tex.Civ.App., 173 S.W.2d 180; Crawford v. Crawford, Tex.Civ.App., 256 S.W.2d 875; Jaeger v. Cullen, Tex.Civ.App., 183 S.W.2d 584; Lane v. Fair Stores, Inc., 150 Tex. 566, 243 S.W.2d 683; Byrnes v. Blair, Tex.Civ.App., 183 S.W.2d 287.