Opinion
No. 7793.
April 7, 1917.
Error from District Court, Kaufman County; F. L. Hawkins, Judge.
Action by W. D. Evans against Mary Sheppard and others. Judgment for plaintiff, and defendants bring error. Cause dismissed.
Ross Huffmaster, of Kaufman, for plaintiffs in error. Wynne Wynne, of Kaufman, for defendant in error.
This is a writ of error from a judgment rendered by the district court of Kaufman county at the March term, 1916. A petition for writ of error was filed June 6, 1916. A transcript of the record was filed in this court September 20, 1916, but no briefs were filed by plaintiffs in error until March 27, 1917. The defendant in error, on March 29, 1917, filed a motion to strike out said brief of plaintiffs in error. The cause was set down for submission and duly submitted on March 31, 1917, and with it a motion of defendant in error to strike out briefs of plaintiffs in error, and that the cause be dismissed. The motion to strike out shows that no agreement was made as to time for filing briefs; that no copy of briefs was served on defendant in error or his attorney, but a copy was mailed in Kaufman on the 28th of March, 1917, and received by the said attorney on the 29th of March, 1917; and that time for reply thereto was not sufficient.
There is no excuse presented by plaintiffs in error for not filing briefs earlier, as required by the statutes. There was not sufficient time for defendant in error to prepare and file briefs, and under rule 39 (142 S.W. xiii) Court of Civil Appeals, we are of the opinion the cause must be dismissed for want of prosecution, and it is so ordered. Alderete v. Mosley, 189 S.W. 1083; Hensley v. Pena, 190 S.W. 247.