Exchange Estates, Inc. v. Donaldson

Court of Appeals of Texas

Exchange Estates, Inc. v. Donaldson

412 S.W.2d 780, 1967 Tex. App. LEXIS 2780

CourtCourt of Appeals of Texas

DecidedFebruary 17, 1967

Docket16801

StatusPublished

Cited by5 cases

This text of 412 S.W.2d 780 (Exchange Estates, Inc. v. Donaldson) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Exchange Estates, Inc. v. Donaldson, 412 S.W.2d 780, 1967 Tex. App. LEXIS 2780 (Tex. Ct. App. 1967).

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ON REHEARING ON MOTION FOR EXTENSION OF TIME TO FILE STATEMENT OF FACTS

PER CURIAM.

The cause is presently pending for submission on the merits of the appeal. The transcript was timely filed. This opinion is upon appellants’ motion for a rehearing following our refusal to grant an extension of time for the filing of a statement of facts.

Our present holding: Where the original motion for extension of time to file statement of facts in the Court of Civil Appeals presented proof purporting to discharge appellants’ burden to establish that the delay was excusable, which motion was contested with evidence that the statement of facts was not requested until two days prior to date it should have been filed,—and said evidence not having been controverted prior to the time the court overruled the motion for extension of time—proof subsequently tendered, which would have raised a fact issue entitling the court to hold that good cause for delay did exist, had it been filed before the motion was overruled, should not be considered in determination of the motion for rehearing.

Consideration of the question of “good cause” for delayed filing of a statement of facts, as part of the record on appeal, is an original proceeding. The issue thereupon determined is made by pleadings and proof before the appellate court at the time it either grants or denies the motion for extension of time, at least as applied to a case where the parties join issue, as adversaries, upon the matter of good cause for delay.

The members of this court are in accord that where such issue is joined—on original submission—by pleadings and proof constituting notice of the attack upon the sufficiency of the proof tendered to establish good cause for the delay, appellants should be thereafter confined to the record existent at time of the order.

See Texas Rules of Civil Procedure 458, “Motion and Second Motion for Rehearing”. See also the reasoning of Chief Justice Gaines relative to right to correct a record so as to cause it to reflect essential jurisdictional facts in connection with what purported to be a defective statement of facts—in Gulf, C. & S. F. Ry. Co. v. Cannon, 88 Tex. 312, 31 S.W. 498 (1895).

Motion for rehearing is overruled.

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ON REHEARING ON MOTION FOR EXTENSION OF TIME TO FILE STATEMENT OF FACTS

PER CURIAM.

The cause is presently pending for submission on the merits of the appeal. The transcript was timely filed. This opinion is upon appellants’ motion for a rehearing following our refusal to grant an extension of time for the filing of a statement of facts.

Our present holding: Where the original motion for extension of time to file statement of facts in the Court of Civil Appeals presented proof purporting to discharge appellants’ burden to establish that the delay was excusable, which motion was contested with evidence that the statement of facts was not requested until two days prior to date it should have been filed,—and said evidence not having been controverted prior to the time the court overruled the motion for extension of time—proof subsequently tendered, which would have raised a fact issue entitling the court to hold that good cause for delay did exist, had it been filed before the motion was overruled, should not be considered in determination of the motion for rehearing.

Consideration of the question of “good cause” for delayed filing of a statement of facts, as part of the record on appeal, is an original proceeding. The issue thereupon determined is made by pleadings and proof before the appellate court at the time it either grants or denies the motion for extension of time, at least as applied to a case where the parties join issue, as adversaries, upon the matter of good cause for delay.

The members of this court are in accord that where such issue is joined—on original submission—by pleadings and proof constituting notice of the attack upon the sufficiency of the proof tendered to establish good cause for the delay, appellants should be thereafter confined to the record existent at time of the order.

See Texas Rules of Civil Procedure 458, “Motion and Second Motion for Rehearing”. See also the reasoning of Chief Justice Gaines relative to right to correct a record so as to cause it to reflect essential jurisdictional facts in connection with what purported to be a defective statement of facts—in Gulf, C. & S. F. Ry. Co. v. Cannon, 88 Tex. 312, 31 S.W. 498 (1895).

Motion for rehearing is overruled.

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412 S.W.2d 780, 1967 Tex. App. LEXIS 2780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/exchange-estates-inc-v-donaldson-texapp-1967.

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