Powell v. Lake

Court of Appeals of Texas

Powell v. Lake

116 S.W.2d 488, 1938 Tex. App. LEXIS 588

CourtCourt of Appeals of Texas

DecidedApril 2, 1938

DocketNo. 12685.

StatusPublished

This text of 116 S.W.2d 488 (Powell v. Lake) 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.

Bluebook

Powell v. Lake, 116 S.W.2d 488, 1938 Tex. App. LEXIS 588 (Tex. Ct. App. 1938).

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Opinion

YOUNG, Justice.

Appellant’s motion at this time to file statement of facts and transcript shows good cause, had the facts therein been presented to us in a motion for extension of time, filed within the sixty-day period fixed by article 1839, R.S., as amended Acts 1933 43d Leg. c. 67, p. 142, Vernon’s Ann.Civ.St. art. 1839;' or within the fifteen-day grace period thereafter. The final order herein overruling motion for new trial, from which appeal is taken, was dated November 26, 1937. No motion for extension having been made by appellant during the statutory time, we have lost jurisdiction to permit filing of the record, or to entertain a motion to such effect. The Supreme Court has definitely held that, where the record on appeal is not filed in the Court of Civil Appeals within the time allowed by law, and no motion for extension is filed within that period or within the fifteen days thereafter, the right of appeal is lost; and when appel-lees make a' showing that appellant has perfected bis appeal in accordance with law, thereafter failing to file transcript of the record in this court, within the required time, or a motion for extension during the seventy-five days mentioned, the right to an affirmance on certificate becomes absolute. Jarrell v. Farmers’ & Merchants’ State Bond Bank, 128 Tex. 332, 99 S.W.2d 281.

Appellant’s motion is.therefore overruled, and that of appellees to affirm on certificate is sustained.

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YOUNG, Justice.

Appellant’s motion at this time to file statement of facts and transcript shows good cause, had the facts therein been presented to us in a motion for extension of time, filed within the sixty-day period fixed by article 1839, R.S., as amended Acts 1933 43d Leg. c. 67, p. 142, Vernon’s Ann.Civ.St. art. 1839;' or within the fifteen-day grace period thereafter. The final order herein overruling motion for new trial, from which appeal is taken, was dated November 26, 1937. No motion for extension having been made by appellant during the statutory time, we have lost jurisdiction to permit filing of the record, or to entertain a motion to such effect. The Supreme Court has definitely held that, where the record on appeal is not filed in the Court of Civil Appeals within the time allowed by law, and no motion for extension is filed within that period or within the fifteen days thereafter, the right of appeal is lost; and when appel-lees make a' showing that appellant has perfected bis appeal in accordance with law, thereafter failing to file transcript of the record in this court, within the required time, or a motion for extension during the seventy-five days mentioned, the right to an affirmance on certificate becomes absolute. Jarrell v. Farmers’ & Merchants’ State Bond Bank, 128 Tex. 332, 99 S.W.2d 281.

Appellant’s motion is.therefore overruled, and that of appellees to affirm on certificate is sustained.

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116 S.W.2d 488, 1938 Tex. App. LEXIS 588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/powell-v-lake-texapp-1938.

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