Opinion
No. 4399.
April 15, 1935. Rehearing Denied June 3, 1935.
Appeal from District Court, Childress County; A. J. Fires, Judge.
Action by Mary Gladys Land, executrix, and others against J. J. Land. Judgment for plaintiffs, and defendant appeals. On motion to dismiss appeal.
Appeal dismissed.
J. S. Kendall, of Munday, for appellant.
Williams Bell and C. C. Broughton, all of Childress, M. F. Billingsley, of Munday, and Seay, Malone Lipscomb, of Dallas, for appellees.
On a former appeal of this case, Campbell et al. v. Land, reported in 69 S.W.2d 554, this court held that J. J. Land was a proper party to the litigation and that the trial court committed reversible error in dismissing him from the cause. We refer to the opinion on the former appeal for a sufficient statement of the history and nature of the litigation.
At the second trial, J. J. Land was a party to the suit, the case was tried before a jury, and judgment was rendered against him on the findings of the jury, from which he prosecutes this appeal.
The record discloses that on June 29, 1934, judgment was rendered in the trial court, and on July 19th appellant filed a supersedeas bond, and that on August 17th thereafter he filed an incomplete transcript in this court, and by permission of the court filed a supplemental transcript on October 26, 1934. That by notice dated February 11, 1935, the parties were informed that the case was set for and would be submitted April 8, 1935. The appellees filed their motion requesting that the appeal be dismissed because appellant had not furnished the attorneys of appellees a copy of his brief and had not filed any briefs in this court. On April 5th thereafter the appellant tendered briefs to this court and filed a motion to postpone the submission of the cause inasmuch as he received no notice of the motion to dismiss until April 4th, and on account of the numerous propositions of law and authorities cited in said motion there was not sufficient time for him to prepare a reply to the motion to dismiss.
Appellant has filed no motion requesting that his briefs be filed, and offers no explanation for his failure to file them within the time prescribed by amended articles 1847, 1848, R. C. S. (Vernon's Ann. Civ. St. arts. 1847, 1848), and rules 36 and 38 of the Courts of Civil Appeals. Under this record appellant is not entitled to have his briefs filed nor the submission of the case postponed. Gray v. Kaliski (Tex Civ. App.) 8 S.W.2d 203.
There is no statement of facts, and no fundamental error apparent of record; hence, appellees' motion is granted and the appeal dismissed.