Douglass v. Mercer

124 S.W.2d 401

• Court: Court of Appeals of Texas
• Decided: February 8, 1939
• Docket: No. 13506.
• Status: Published

Opinion

SMITH, Chief Justice.

Judgment was rendered in this cause on April 2, 1938, from which relators herein sought to prosecute writ of error. Petition and bond in error were filed on September 26th. Service of the writ was had on September 30th.

It was the duty of relators, if they desired to prosecute the appeal, to promptly apply to the clerk of the trial court for a transcript of the proceedings, to enable them to timely file the same in this Court. On the contrary, however, relators delayed making such application for 43 days, or until November 13th. Upon receipt of this application the Clerk proceeded, as 'other duties of his office permitted, to make up the transcript as ordered. It was delivered in due course to relators on November 30th, the last day on which it could properly be filed in this Court. Relators tendered it here on the following day, which was too late, and upon its rejection, relators thereafter on December 6th, filed motion for leave to file the belated transcript.

After mature consideration of the facts stated above, in connection with other circumstances apparent of record, this Court denied the motion for leave to file. Re-lators have filed their motion for rehearing thereon.

We are of the opinion that relators’ own motion affirmatively shows such a lack of diligence in applying for and procuring the transcript from the Clerk of the trial court as to preclude the remedy sought. It is obvious that relators’ unexplained delay of 43 days in applying for the transcript was the sole cause of their failure to comply with the plain provision of the statute, and their motion for rehearing will be denied.