*1 353 Summers, Antonio, Robert B. “void,” there San ap- is or whether would have for will the error if burden had pellee. fundamentаl been upon point the contestant to raise the
been CURIAM. PER Pierce, See v. 257 the trial court. Crane in (Tex.Civ.App.1953,writ refus- 510 S.W.2d 25, 1976, May appellant filed mo- his On ed). extension of time for an to file the tion appeal from a judgment in his non record for Writ of Error is re- Application The 22, veredicto entered on March obstante fused, no reversible error. was due to be The record filed on or 1976. 21, 386, May 1976. Rule Tex.R. before motion, of said it suрport In is aver- Civ.P. appellant’s attorney “that in the by red 21, 1976, May the file Mar- of of afternoon Gallegos, the containing transcript and cello was placed of facts with a num- statement GALLEGOS, Appellant, Marcеllo by employee files an ber of closed of this v. shortly thereafter taken to and a stor- firm EXCHANGE, INSURANCE TRUCK separate of the part area in a office age cases). (two Appellee was facility.” It further avеrred that the transcript facts not and statement of were A3775, A3803. Nos. 25, Tuesday, May until 1976. located Appeals Texas, of Civil of Court 21c, Tex.R.Civ.P., January Rule effective Antonio. San 1976, 1, provides part in that the failure of 9, 1976. June a timely transcript to file or state- party a 14, Rehearing July Granted 1976. appeals in the court of civil of facts ment loss the appeal a of the if not authorize
will fifteen of defaulting days files within party “a filing motion timely dаte for last the reasonably explaining such failure.” a lost a that record constitutes agree We timely to explanation for failure reasonable diligence that lack of providing no same file transсript the shown. Here is otherwise on appellant’s attorney to delivered was 1976, 5, and the facts statemеnt of April reporter April the court on by certified was oth- explanation, reasonable or 9, No 1976. given why completed the erwise, has been day. the prior filed to last not was record risk that it could becоme a calculated was It kept by appellant’s if at- misplaced or lost thirty days filing without it. torney for over situation, appellant has failed to this In his explanation for failure reasonable a give the record. timely file to for extension of time is de- motion The nied. FOR REHEARING MOTION
ON 1976, 9, we appellant’s denied June On Antonio, Dorr, for оf appellant. Karl San for time for the filing extension motion *2 354 appellant held that offered no definitiоns of the word “inadvertence” in and
record Rule 21c1 explanation” under we as negligence, exprеss opinion “reasonable no clude a record which became mis- filing not negligent for a failure file timely to to whether of possession appellant’s in at- while placed a explanation is reasonable under a record that there was a calculat- We held torney. Here there is of showing Rule 21c. nо would become or the record lost that ed risk negligence. kept by appellant’s when it was misplaced requires that the Rule 386 record be filed days without thirty filing for over attorney sixty days from the rendition of the within it. or order judgment overruling motion final a has now filed motion for Appellant trial, perfection or of writ of new errоr. for wherein it is asserted that the rehearing, require appellant to not file the It does promptly by not filеd was the attor- record possible. as Certainly soon the as record he was begin not able to work ney because have been filed ques- would without record because press of the of his trial the brief on been tendered on it had the sixtieth if tion planned to file He the record on docket. the fact that it had been in day despite day so as to have maximum the sixtieth possession for more than thirty appellant’s for preparing his brief. available time timely failure to file was not days. The 386, of Rule provisions the which Under Appellant or intentional. was deliberate prior extensions of time to the governed the it timely to file recоrd because unable 21c, it was necessary of Rule for adoption explana- is a reasonablе lost. This became good show why to cause said appellant the timely failure to file the appellant’s for tion sixty days. not be filed within could record record. Matlock, 308, v. Matlock 151 Tex. 249 See for extension оf time is motion The (1952); Carter, Thompson 587 v. S.W.2d authority pre- of Rule 21c to under granted Jones, Rudberg, Magee, Mayes, Mоss & 514 appellant’s appeal. of The time vent loss 1974, (Tex.Civ.App. 131 no S.W.2d — Dallas July the record is extended until filing for Sellers, writ); v. 477 678 Watson S.W.2d 21, 1976. 1972, (Tex.Civ.App. [14th Dist.] — Houston writ); Hospital Pollard v. American no and Co., 472 (Tex. Insurance S.W.2d 116 Life
1971). harshness of this The restrictive rule
undoubtedly adоption led to the of 21c Rule accompanying the amendment
with to Rule
386. provides
Rule 21c that the failure to a record in the timely file court of civil MOODY, Jr., Appellant, Shearn will not authorize dismissal appeals of the defaulting party if the files a appeal timely v. reasonably explaining his failure to
motion Texas, Appellee. оf STATE filing deadline. It the has been held meet 7830. No. explanation “any plau a reasonable is that indicating of circumstances statement sible Texas, Appeals of of Civil Court sixty-day to file within the that failure Beaumont. intеntional, deliberate or but not was period 10, 1976. June inadvertence, mistake, result of or the was Mulloy Mulloy, v. 538 S.W.2d mischance.” 8, July Denied 1976. Rehearing 818, Reports (Tex.Civ. 1 Court 24 Texas 1976); v. Stieler App. Dist.] [14th — Houston Stieler, 954 (Tex.Civ.App 537 S.W.2d . —Aus 1976). While we recognize that some tin
1. All references to rules are to Tex.R.Civ.P.