Opinion
Decided November 28, 1908.
Appeal — Failure to File Brief — Dismissal.
When an appellant files no brief in the court from which the appeal is taken, and files none in the Court of Civil Appeals until the day of submission, in the absence of excuse for such failure to comply with the rules, the appeal will be dismissed on timely motion of the appellee.
Appeal from the District Court of Harris County. Tried below before Hon. Chas. E. Ashe.
A. H. Jayne, for appellant.
No brief for appellee.
In this case appellee has filed a timely motion to dismiss the appeal for failure of appellant to comply with the rules with regard to filing brief. The facts, as set out in the sworn motion, are as follows:
The appeal was perfected December 17, 1907, and the transcript applied for and filed in this court on March 16, 1908. On November 5, 1908, the case was set down for submission in its regular order on November 19, 1908. No briefs were filed by appellant in the District Court, and none in this court until the day set for submission, November 19th. The motion to dismiss was filed in this court on November 17th, having been prepared by appellees' counsel on the 16th inst., and at that time appellee's counsel had not been furnished with a copy of appellant's brief, and had no knowledge that such brief would be filed. No answer was made to the motion and no excuse offered for failure to comply with the rule. The facts are substantially identical with those in the case of Niday v. Cochran ( 106 S.W. 462), in which the appeal was dismissed on motion. The motion must be sustained and the appeal dismissed.
Dismissed.