La Brier v. Williams

Full title: LA BRIER et al. v. WILLIAMS

Court: Court of Civil Appeals of Texas, San Antonio

Date published: Mar 17, 1948

212 S.W.2d 827 (Tex. Civ. App. 1948)

Opinion

No. 11827.

March 17, 1948.

Appeal from Ninty-Fourth District Court, Nueces County; A. J. Pope, Judge.

Action by Laura Huff La Brier and husband against Walter C. Williams for partition of a house and lot alleged by defendant to be subject to homestead rights. From the judgment, plaintiffs appeal. On appellee's motions to dismiss the appeal and strike the statement of facts, and appellants' motion for extension of time.

Appellee's motions overruled, and appellants' motion granted in accordance with opinion.

See also 212 S.W.2d 828.

T. H. Burruss, of Corpus Christi, for appellants.

D. J. Wilson, of Galveston, for appellee.

MURRAY, Justice.

Appellee's motion to dismiss this appeal because the transcript was not filed within the sixty-day period provided for by Rule 386, Texas Rules Civil Procedure, will be overruled.

We are informed by the clerk that the transcript in this cause arrived in San Antonio Saturday afternoon at about 3:20 o'clock. At this hour the clerk had closed his office and gone to his home. One J. Edwards, a representative of the Railway Express Agency, telephoned to him at his residence and informed him that the record had arrived and offered to deliver it to him at his residence. The clerk informed J. Edwards that it would not be necessary to make delivery at his residence but that he would accept constructive delivery by telephone and that it could be delivered Monday morning at the clerk's office, which was done. The clerk intended to file the record as of Saturday, January 31, 1948, but, through inadvertence, filed it as of Monday, February 2, 1948.

Under all the circumstances the transcript was tendered to this Court within the sixty-day period allowed by Rule 386, and appellee's motion to dismiss will be overruled.

On Appellee's Motion to Strike Statement of Facts.

Appellee's motion to strike the statement of facts from the record is without merit and is overruled.

On Appellants' Motion for Extension of Time.

Appellants' motion for an extension of time for briefing is granted and appellants will be given until March 31, 1948, to file their brief. This cause having previously been set for submission for April 7, 1948, and it now appearing that there will not be sufficient time for briefing, the submission of this cause will be postponed until May 5, 1948.