Texas & P. Ry. Co. v. Cave

Court of Appeals of Texas

Texas & P. Ry. Co. v. Cave

173 S.W. 988, 1914 Tex. App. LEXIS 1427

CourtCourt of Appeals of Texas

DecidedDecember 12, 1914

DocketNo. 8033.

StatusPublished

Cited by2 cases

This text of 173 S.W. 988 (Texas & P. Ry. Co. v. Cave) 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

Texas & P. Ry. Co. v. Cave, 173 S.W. 988, 1914 Tex. App. LEXIS 1427 (Tex. Ct. App. 1914).

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Opinions

BUCK, J.

On March 26, 1913, defendant in error D. C. Cave instituted this suit in the county court of Jones county against the Roscoe, Snyder ,& Pacific Railway Company and the receivers of the Kansas City, Mexico &' OrientRailway Company of Texas, and against plaintiff in error, the Texas & Pacific Railway Company. From a judgment for plaintiff against the Kansas City, Mexico & Orient Railway Company and the plaintiff in error, and in favor of the Roscoe, Snyder & Pacific Railway Company, the plaintiff in error prosecutes this writ of error.

[1, 2] Defendant in error has filed a motion to dismiss the appeal based upon the allegation that plaintiff in error has failed to file a. brief in this cause in the county court of Jones county, as required by article 1417, Revised Statutes 1895, article 2115, Revised Statutes 1911, and rule 29 (142 S. W. xii) adopted by the Supreme Court for the government of the Courts of Civil Appeals, and the further allegation that no notice of the filing of briefs in this cause in the court below has ever been served on the defendant in. error, or his counsel of record, as required by said article and said rule, further alleging that' defendant in error herein has never waived notice of such filing of the briefs, nor any other provisions of said article.

Counsel for plaintiff in error admits that no brief was filed in the court below, as required by said article, but states that the failure so to do was because counsel for defendant in error had agreed in writing to waive said provisions, and that said legal waiver had been lost, and that subsequently to the notification of such loss by counsel for plaintiff in error to counsel for defendant in error said counsel for defendant in error refused to execute another waiver. Counsel for defendant in error deny any such agreement or waiver, either oral or in writing, and upon the issue thus joined there have been submitted to us affidavits pro and eon, which we are not at liberty to consider or weigh. Before this court would be justified in considering the brief of plaintiff in error which he seeks to have filed in this court, it would have to appear either that the terms of said article had been complied with, or that the counsel for the opposite side had waived such compliance, and that such waiver was in writing and filed in this court.

[3] The record discloses that judgment was obtained by defendant in error' in the court below on November 12, 1913; that the amended motion for new trial of plaintiff in error was overruled on November 29, 1913, the court allowing 130 days after adjournment of the current term of court in which to file statement of facts and bills of exceptions. On January 28, 1914, the court granted a further extension of ten days to the plaintiff in error in which to file statement of facts and bills of exceptions. On December 16, 1913, plaintiff in error filed its supersedeas bond, and on March 28,1914, its petition for writ of error. Citation in error was issued on said last-named date, and return made thereupon by the sheriff showing that he had executed said process by delivering to defendant in error in person said writ on April 14, 1914; service and waiver shown as to other parties to this suit not here necessary to mention. Sjipersedeas writ of error bond was filed by plaintiff in error in the trial court on March 28, 1914. This cause was set for submission in this court October 24,1914, and the motion of plaintiff in error to file briefs was set for hearing on October 23d. Thus it will be' seen that only one day intervened between the *989 bearing on the motion to file briefs and the submission of the cause. We think that, under the circumstances, motion of plaintiff in error to file briefs comes too late, and that the motion of defendant in error to dismiss the appeal should be sustained.

Appeal dismissed.

CONNER, C. J., dissents. See 173 S. W. 1201.

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BUCK, J.

On March 26, 1913, defendant in error D. C. Cave instituted this suit in the county court of Jones county against the Roscoe, Snyder ,& Pacific Railway Company and the receivers of the Kansas City, Mexico &' OrientRailway Company of Texas, and against plaintiff in error, the Texas & Pacific Railway Company. From a judgment for plaintiff against the Kansas City, Mexico & Orient Railway Company and the plaintiff in error, and in favor of the Roscoe, Snyder & Pacific Railway Company, the plaintiff in error prosecutes this writ of error.

[1, 2] Defendant in error has filed a motion to dismiss the appeal based upon the allegation that plaintiff in error has failed to file a. brief in this cause in the county court of Jones county, as required by article 1417, Revised Statutes 1895, article 2115, Revised Statutes 1911, and rule 29 (142 S. W. xii) adopted by the Supreme Court for the government of the Courts of Civil Appeals, and the further allegation that no notice of the filing of briefs in this cause in the court below has ever been served on the defendant in. error, or his counsel of record, as required by said article and said rule, further alleging that' defendant in error herein has never waived notice of such filing of the briefs, nor any other provisions of said article.

Counsel for plaintiff in error admits that no brief was filed in the court below, as required by said article, but states that the failure so to do was because counsel for defendant in error had agreed in writing to waive said provisions, and that said legal waiver had been lost, and that subsequently to the notification of such loss by counsel for plaintiff in error to counsel for defendant in error said counsel for defendant in error refused to execute another waiver. Counsel for defendant in error deny any such agreement or waiver, either oral or in writing, and upon the issue thus joined there have been submitted to us affidavits pro and eon, which we are not at liberty to consider or weigh. Before this court would be justified in considering the brief of plaintiff in error which he seeks to have filed in this court, it would have to appear either that the terms of said article had been complied with, or that the counsel for the opposite side had waived such compliance, and that such waiver was in writing and filed in this court.

[3] The record discloses that judgment was obtained by defendant in error' in the court below on November 12, 1913; that the amended motion for new trial of plaintiff in error was overruled on November 29, 1913, the court allowing 130 days after adjournment of the current term of court in which to file statement of facts and bills of exceptions. On January 28, 1914, the court granted a further extension of ten days to the plaintiff in error in which to file statement of facts and bills of exceptions. On December 16, 1913, plaintiff in error filed its supersedeas bond, and on March 28,1914, its petition for writ of error. Citation in error was issued on said last-named date, and return made thereupon by the sheriff showing that he had executed said process by delivering to defendant in error in person said writ on April 14, 1914; service and waiver shown as to other parties to this suit not here necessary to mention. Sjipersedeas writ of error bond was filed by plaintiff in error in the trial court on March 28, 1914. This cause was set for submission in this court October 24,1914, and the motion of plaintiff in error to file briefs was set for hearing on October 23d. Thus it will be' seen that only one day intervened between the *989 bearing on the motion to file briefs and the submission of the cause. We think that, under the circumstances, motion of plaintiff in error to file briefs comes too late, and that the motion of defendant in error to dismiss the appeal should be sustained.

Appeal dismissed.

CONNER, C. J., dissents. See 173 S. W. 1201.

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173 S.W. 988, 1914 Tex. App. LEXIS 1427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-p-ry-co-v-cave-texapp-1914.

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