Opinion
Joe E. Griffith, Crockett, for appellant George E. Hutcherson.
Roy W. Hill, Fairfield, for appellant Juanita Hutcherson.
Jerry L. Calhoon, McDonald, Calhoon & Kolstad, Hoyt Johnston, Johnston & Johnston, Palestine, for appellees.
PER CURIAM.
Appellant, George E. Hutcherson, and appellant, Juanita Hutcherson, have each filed separate motions for extension of time to file transcript in this case.
The record reveals that neither motion is sworn to nor accompanied by any sworn proof to support the allegations set out in the motion showing a reasonable explanation why the transcript was not filed on time as required by Rules 386, Texas Rules of Civil Procedure. Rule 21c of the Texas Rules of Civil Procedure, which became effective January 1, 1976, allows the Court of Civil Appeals more discretion in extending the time for filing a transcript or statement of facts than those courts previously had. However, 21c, T.R.C.P., does not dispense with the necessity for the movant to make sufficient proof under oath in the motion for extension or have some affidavit attached thereto showing 'a reasonable explanation' why the record was not filed on time.
It is the opinion of the court that the facts alleged in the motions and relied upon by the movants as constituting a reasonable explanation for permitting each of them to file the transcript late must be proved by affidavit or by some other legitimate form of evidence that can be considered by an appellate court. Without such proof we are not authorized to grant the extension of time prayed for. Home Fund, Inc. v. Garland, 520 S.W.2d 939 (Tex.Civ.App., Fort Worth 1975, writ ref'd n.r.e.); Carter v. City of Fort Worth, 357 S.W.2d 581 (Tex.Civ.App., Fort Worth 1962, writ ref'd n.r.e.).
Therefore, the court overrules both motions for extension of time to file the transcript for the reasons above stated.