Purswell v. Malone, Murphy & Fenley

550 S.W.2d 151, 1977 Tex. App. LEXIS 2896

• Court: Court of Appeals of Texas
• Decided: April 20, 1977
• Docket: No. 1609
• Status: Published

Opinion

J. CURTISS BROWN, Chief Justice.

This is an appeal from a summary judgment. The dispute involved Malone, Murphy & Fenley’s (appellee) obligation on a note payable to Lucille Purswell (appellant) which it assumed upon receiving title in 1974 to certain real property in Harris County. The trial court granted appellee’s motion for summary judgment. From this judgment, appellant appealed.

The transcript in this case was filed on January 21, 1977. Submission of the case was set for April 6, 1977. On February 18, 1977, 3 days before the end of her 30 day filing period under Tex.R.Civ.P. 414, appellant filed a motion for a 30 day extension within which to file her brief. This court granted a 17 day extension until March 10, 1977. Any further extension would have required us to disrupt our docket. On March 10, appellant filed her second motion to extend time for filing her brief which we denied.

Appellee has filed a motion to dismiss the appeal in accordance with Tex.R. Civ.P. 415. We take note of two pertinent facts: First, appellant waited until 3 days before the end of the 30 day period before requesting any extension for the filing of appellant’s brief. Second, under Malooly Bros., Inc. v. Napier, 461 S.W.2d 119 (Tex.Sup.1970), appellant would only be required to state as a point of error that the trial court erred in granting the motion for summary judgment. This assignment, along with her argument as to any fact or legal issue presented, would have been sufficient.

Furthermore, under normal circumstances, we freely grant leave to augment or amend briefs where no new points of error are raised. Appellee’s motion to dismiss the appeal under rule 415 is granted. Appellant’s motion to transfer this case to the Court of Civil Appeals, First Supreme Judicial District of Texas is denied.

Appeal dismissed.