Opinion
No. 5125.
March 4, 1940.
Appeal from District Court, Lubbock County; Daniel A. Blair, Judge.
Foreclosure proceeding by B. Sherrod and others against H. E. Chambers and others, wherein C. G. Erwin intervened seeking to establish a prior superior lien upon the property involved. From an adverse judgment, intervener appeals.
Affirmed.
E. A. Bills, of Littlefield, for appellant.
Bean, Evans Bean, of Lubbock, for appellees.
A petition for injunction in this cause was heretofore before this court, in which we restrained the sheriff of Lamb County from executing an alias order of sale commanding him to sell sixteen Maytag washing machines, the subject of this suit, until the final orders of this court. Our per curiam opinion in this matter will be found in Tex. Civ. App. 134 S.W.2d 756 to which we refer for a statement of this case.
This cause was submitted on its merits on February 26, 1940. Theretofore, on February 2, 1940, the appellant, C. G. Erwin, tendered to the clerk of this court his brief for filing in this cause. Such brief not having been presented within the time required the same was not filed. No excuse has been offered by the appellant for his delay in presenting this brief, no relief has been sought for filing it out of time, and no waiver has been obtained from the appellees in regard to this matter. However, the appellees have filed briefs and present no objections to our consideration of the appellant's briefs. We therefore shall examine the record for fundamental error.
A decision on the question of fundamental error will incidentally decide the only assignment presented in appellant's brief. The only issue in the case is the priority of liens upon the property asserted respectively by the appellant and appellees, which issue was resolved against the appellant by the trial court. We deem it sufficient to state that we have examined the record and find ample testimony to support the trial court's conclusion in this respect. We are therefore of the opinion that no error of any sort is presented in this case.
The judgment is affirmed.