Reasonover v. Reasonover

46 S.W.2d 382 | Tex. App. | 1932

SMITH, J.

Writ of error was perfected in this case on September 25, 1931, and under the provisions of article 1839', R. S. 1925, as amended by an Act of the 42d Legislature (Gen. Laws 1931, ch. 66, § 1, p. 10O [Vernon’s Ann. Civ. St. art. 1839]), plaintiffs in error were required to file the transcript in this court within sixty days from said date, unless this court, “for good cause shown before the expiration of such sixty day period,” should “permit the transcript to be thereafter filed upon such terms as it shall prescribe.”

Plaintiffs in error tendered the transcript to the clerk of this court for filing on December 9, 1931, which was after the expiration of the sixty-day period, and, the clerk having refused to file the record, plaintiffs in error have presented a motion in this court for leave to file it. The motion must be denied.

While the statute gives this court discretion in the matter of extending the time for filing records, such discretion is not operative except upon “good cause shown before the expiration of such sixty day period.” In other words, by the plain provision of the statute, an appellant or plaintiff in error may invoke the discretion of this court in such matter only when he applies therefor prior to the time he is required by statute to file the record herein.

It appears that before the expiration of the sixty-da^ period, upon plaintiffs in error’s application therefor, the trial court granted and entered an order allowing plaintiffs in error ninety days from the perfection of the appeal in which to file the record in this court. That order is of no effect, however, for, as a matter of course, this court, and not the district court, has the' power of control over such extensions, and such power may be put in operation only by timely invocation.

The motion for leave must-¡be denied.