Opinion
No. 1397.
October 25, 1935.
Appeal from District Court, Brazos County; W. C. Davis, Judge.
Suit between the Colored Legion Benevolent Association and Will Hall. From a judgment, first-named party appeals.
Affirmed.
J. Felton Lane, of Hearne, for appellant.
W. R. Allen and Oak McKenzie, both of Bryan, for appellee.
This cause was appealed to the Court of Civil Appeals for the Tenth supreme judicial district at Waco, and, on equalization of the docket by the Supreme Court, was on the 21st day of June, 1934, transferred to this court.
On the 8th day of December, 1934, appellant and appellee presented to this court their joint motion to postpone submission of this cause until the 15th day of March, 1935, which motion contained the following agreement: (We) "agree that either party may file briefs in said cause at any time on or before the first day of March, A.D. 1935." On December 10, 1934, the clerk of this court advised attorneys for the appellant and appellee that the court was inclined to grant the motion and reset the case for submission, provided such action would not necessitate a hearing of oral argument at Waco. On December 11, attorneys for the parties to this appeal filed an agreement in this court which, among other things, provided: "It is agreed between us that the submission of this case be postponed to the 15th day of March, A.D. 1935, and that it will be submitted on briefs only by the respective attorneys and without oral argument for either appellant or appellee." Thereafter, another request for postponement was made, and attorneys for appellant and appellee were notified by the clerk of this court that their request for further postponement was granted, and that the case had been reset for submission for June 7, 1935. The record in this case was mailed to the attorney for appellant on May 22, 1935, at his request, for the purpose of preparing and filing a brief herein. On June 7th the cause was submitted on the record. Thereafter, on June 11, 1935, appellant filed his motion herein, praying that the submission of the case had on June 7th be set aside and that appellant's brief received with said motion on June 11th "be received and considered." This motion was not granted.
No good reason is shown for the failure of appellant to file his brief in this court prior to the submission of said cause, and, there being no agreement by the appellee that it might be filed out of time, same will not be considered and the case will be treated as the facts require; that is, as one where no brief has been filed by appellant.
Appellee has filed no brief, and the case is before the court upon a transcript and statement of facts. We have inspected the record for fundamental error, and, finding none, the judgment of the trial court is in all things affirmed. Haynes v. J. M. Radford Grocery Co., 118 Tex. 277, 14 S.W.2d 811; Shipley et ux. v. Wyatt (Tex. Civ. App.) 74 S.W.2d 433; Central West Texas Ins. Ass'n v. Meyers (Tex. Civ. App.) 62 S.W.2d 635; Adamson v. Sethman et al. (Tex. Civ. App.) 60 S.W.2d 822; Texas Creosoting Co. v. Sims (Tex. Civ. App.) 81 S.W.2d 556; Brown et al. v. Spector (Tex. Civ. App.) 70 S.W.2d 478; Q. P. Stores, Inc., v. Parrish (Tex. Civ. App.) 64 S.W.2d 1020; 3 Tex.Jur. § 656, p. 937.