Rojas v. Rojas

154 S.W. 1071, 1913 Tex. App. LEXIS 344

• Court: Court of Appeals of Texas
• Decided: March 5, 1913
• Status: Published

Opinion

MeKENZIE, J.

Defendant in error has filed a motion to dismiss this appeal, because the plaintiff in error has failed to comply with the statutes and the rules governing this court as to filing briefs.

This cause is set for submission March 6, 1913. It appears that no brief has been filed by the plaintiff in error with the clerk of the district court, nor has the defendant in error been notified by said clerk of the filing of such brief, as is required by articles 2115 of the Revised Civil Statutes 1911.

Rule 39 (142 S. W. xiii), rules for the Courts of Civil Appeals, provides that the failure of plaintiff in error to file brief in the lower court and in the appellate court, in the time and in the manner prescribed by law and by the rules, shall be ground for dismissing the writ of error for want of prosecution by motion made by the defendant in error, unless good cause is shown why it was not done in the time and manner as prescribed, and that they have been filed at such time and under such circumstances as that the defendant in error has reasonably not suffered any material injury in the defense of the case in the appellate court.

No showing or excuse has been offered why the plaintiff in, error has not complied with the requirement of the statutes governing the filing of briefs, and the cause should therefore be dismissed for want of prosecution, unless, from an examination of the record, fundamental error should appear.

We have examined the record, and there being no error appearing of a fundamental nature we are of the opinion that the motion should be granted and the appeal dismissed.

Dismissed.

HARPER, C. J., did not sit in this cause.