Kunkel v. Bohuslav

497 S.W.2d 106, 1973 Tex. App. LEXIS 2116

• Court: Court of Appeals of Texas
• Decided: June 20, 1973
• Docket: 12053
• Status: Published

Opinions

PHILLIPS, Chief Justice.

The fundamental issue presented by this appeal is the construction of Rules 376 and 386, Texas Rules of Civil Procedure, and a determination of whether appellants’ motion for extension of time in which to file the transcript should be granted.

Final judgment and notice of appeal were entered on December 15, 1972. The record does not disclose that a motion for new trial was ever filed. Appellant, on January 12, 1973, timely deposited cash in lieu of an appeal bond. Subsequently, on February 8, 1973, 55 days after the entry of judgment, appellants filed with the clerk of the trial court, a written request that the clerk prepare the transcript. The clerk was unable to prepare the transcript within the 60 day period called for by Rule 386, Texas Rules of Civil Procedure, and it thus became necessary for appellant to file in this Court a motion for extension of time in which to file the transcript. The last named motion was timely filed in this Court on February 20,1973.

The question before us is whether appellants have demonstrated “good cause” for their failure to file the transcript within the 60 day time period contemplated by Rule 386. The narrower issue is whether, under the facts before us, the request for the transcript was made within a reasonable time after notice of appeal was given. Patterson v. Hall, 430 S.W.2d 483 (Tex. 1968).

The record before us contains an affidavit by the clerk of the court in which the case was tried stating that although the written request for the transcript was not made until February 8, 1973, there were two prior oral requests made by appellants, one on January 12, 1973 and the other on February 2, 1973. The clerk then went on to state that due to her large work load and inadequate staff, she was unable to prepare the transcript prior to the expiration of the 60 day period.

Rule 376, Vernon’s Texas Rules, requires that the proceedings in the trial court shall be ordered in writing: “The clerk of the trial court, under written direction of appellant, shall prepare under his hand and seal of the court for transmission to the appellate court a true copy of the proceedings in the trial court . . . The appellant shall promptly file with the clerk and deliver or mail to the appellee or his attorney a copy of such written direction, and appellee or any party to the appeal may so file and deliver or mail a written direction to include in the transcript additional portions of the proceedings in the trial court, and the clerk shall comply.” (emphasis added)

The record does not reveal the reason for appellants’ waiting 55 days before ordering the transcript in writing. Consequently we hold that there was no good cause for the delay and we do not have the requisite jurisdiction ' to entertain this appeal.¹

We hold that the oral requests made by appellants to the clerk for a copy of the proceedings were inadequate under the rule. A casual reading of the rule makes obvious the reason for the requirement that proceedings be ordered in writing.

Pending oral argument, this Court granted appellants’ motion for extension of time for filing the transcript. We now consider that order improvidently entered. The order is set aside, and this appeal is dismissed for want of jurisdiction to entertain the cause.

Dismissed for want of jurisdiction.

1 . Wigley v. Taylor, 393 S.W.2d 170 (Tex. 1965) ; Vaughan v. Commercial Insurance Company, 476 S.W.2d 428 (Tex.Civ. App.1972, no writ) ; Lyda Lott v. Stressteel Corporation, 469 S.W.2d 321 (Tex. Civ.App. error dismissed, mandamus overruled) ; Jahant v. Odgen, 424 S.W.2d 457 (Tex.Civ.App.1968, no writ) ; Gutierrez v. Casanova, 450 S.W.2d 771 (Tex.Civ. App.1970, no writ) ; Reinhardt v. Joseph P. Martinez, Inc., 439 S.W.2d 478 (Tex. Civ.App.1969, no writ).