Nami v. Industrial Mfg. Co.

Court of Appeals of Texas

Nami v. Industrial Mfg. Co.

223 S.W.2d 653, 1949 Tex. App. LEXIS 2146

Court of Appeals of Texas·Decided October 5, 1949·No. Nos. 16070, 16077·Published·Cited by 2 cases

Opinion

PER CURIAM.

On September 22, 1949, the appellant filed a motion (No. 16077) for leave to file the transcript in this cause. It appears that judgment was rendered on May 24, 1949, and a motion for new trial was overruled on June 30, 1949. A notice of appeal was contained in the order overruling the motion for new trial.

More than seventy-five days elapsed 'between the overruling of the motion for new trial and the filing of the motion in this Court requesting leave to file the transcript.

If a motion for extension of time be filed within fifteen days after the sixty day period prescribed by Rule 386, Texas Rules of Civil Procedure, for filing the transcript and statement of facts, a Court of Civil Appeals is authorized to grant an extension upon good cause shown. If, however, no motion be filed within said fifteen-day period (seventy-five days from the rendition of judgment or order overruling motion for new trial), the matter is no longer discretionary with the Court, but it is wholly,without authority to permit the filing of the transcript. Rule 386 is mandatory and appellant must comply with its provisions in filing the transcript and statement of facts.

As appellant’s motion was not filed within the time prescribed by the rule, it must be overruled. Garrett v. Mercantile National Bank, Tex.Civ.App., 170 S.W.2d 238, affirmed, 140 Tex. 394, 168 S.W.2d 636, 638; Walker v. Cleere, 141 Tex. 550, 174 S.W.2d 956; State ex rel. Crawford [654]*654v. Wagner, Tex.Civ.App., 203 S.W.2d 795, wr. ref.; Alexander Motor Co. v. Pruitt, Tex.Civ.App., 198 S.W.2d 947, wr. ref.; Greer v. Poulter, Tex.Civ.App., 189 S.W.2d 883; Byrnes v. Blair, Tex.Civ.App., 183 S.W.2d 287, mand. denied.

Appellee has filed a proper motion (No. 16070) to affirm on certificate, in accordance with the provisions of Rule 387, T. R.C.P. From what has been said, it' follows that this motion should be granted,, and it is so ordered.

Appellee’s motion No. 16070 is granted. Appellant’s motion No. 16077 is overruled.

SMITH, C. J., absent.

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PER CURIAM.

On September 22, 1949, the appellant filed a motion (No. 16077) for leave to file the transcript in this cause. It appears that judgment was rendered on May 24, 1949, and a motion for new trial was overruled on June 30, 1949. A notice of appeal was contained in the order overruling the motion for new trial.

More than seventy-five days elapsed 'between the overruling of the motion for new trial and the filing of the motion in this Court requesting leave to file the transcript.

If a motion for extension of time be filed within fifteen days after the sixty day period prescribed by Rule 386, Texas Rules of Civil Procedure, for filing the transcript and statement of facts, a Court of Civil Appeals is authorized to grant an extension upon good cause shown. If, however, no motion be filed within said fifteen-day period (seventy-five days from the rendition of judgment or order overruling motion for new trial), the matter is no longer discretionary with the Court, but it is wholly,without authority to permit the filing of the transcript. Rule 386 is mandatory and appellant must comply with its provisions in filing the transcript and statement of facts.

As appellant’s motion was not filed within the time prescribed by the rule, it must be overruled. Garrett v. Mercantile National Bank, Tex.Civ.App., 170 S.W.2d 238, affirmed, 140 Tex. 394, 168 S.W.2d 636, 638; Walker v. Cleere, 141 Tex. 550, 174 S.W.2d 956; State ex rel. Crawford [654]*654v. Wagner, Tex.Civ.App., 203 S.W.2d 795, wr. ref.; Alexander Motor Co. v. Pruitt, Tex.Civ.App., 198 S.W.2d 947, wr. ref.; Greer v. Poulter, Tex.Civ.App., 189 S.W.2d 883; Byrnes v. Blair, Tex.Civ.App., 183 S.W.2d 287, mand. denied.

Appellee has filed a proper motion (No. 16070) to affirm on certificate, in accordance with the provisions of Rule 387, T. R.C.P. From what has been said, it' follows that this motion should be granted,, and it is so ordered.

Appellee’s motion No. 16070 is granted. Appellant’s motion No. 16077 is overruled.

SMITH, C. J., absent.

Nami v. Industrial Mfg. Co., 223 S.W.2d 653, 1949 Tex. App. LEXIS 2146 (Tex. Ct. App. 1949).

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