Vanderford v. Amthor

294 S.W.2d 758, 1956 Tex. App. LEXIS 1873

• Court: Court of Appeals of Texas
• Decided: October 10, 1956
• Docket: Motion Nos. 11735, 11736
• Status: Published

Opinion

ARCHER, Chief Justice.

Appellant has filed his motion herein for an extension of time in which to file a transcript and statement of facts.

The hearing on a plea of privilege was had and judgment overruling such plea was had on August 21, 1956, and appellant excepted and gave notice of appeal. The appeal bond and the statement of facts were filed with the County Clerk on September 6, 1956.

A transcript was ordered on the same day and was forwarded to appellant by mail, who received it on September 11, 1956 at San Angeló, Texas.

Counsel for appellant was out of his office in' San Angelo until the 12th of September, 1956, and forwarded the transcript and statement of facts to 'the Clerk of this Court. • ■

Rule 385, Texas Rules of Civil Procedure, providés for appeals in interlocutory order’s and limits the time to 20 days and 5 days respectively.

No good cause has been shown by appellant why the transcript and statement of facts could not have been filed within the 20-day period.

The clerk of the county court states under oath that appellant’s attorney requested the transcript on September 6, 1956 and stated that he was.in no hurry and that it would be all right if he got the transcript in 10 days, and the clerk stated that he •mailed the transcript to appellant’s attorney on September 11,1956.

Appellant’s counsel admits that he was not conscious of the time element in appeals from ancillary orders.

The motion is overruled. Rule 385, T.R.C.P.; Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587.

Appellee has filed herein his Motion" • No. 11,736, to affirm the judgment on certificate on account of the failure of appel- ■ lant to timely file transcript and statement. of facts with the Clerk of this Court, which we sustain, and the judgment of the , trial court is affirmed. Rule 387, T.R.C.P.

Motion overruled.