Stemmons v. Briggs, No. 3142.

No. 3142. | Tex. App. | Jul 12, 1934

This is an appeal from an order of the district court of Van Zandt county overruling a plea of privilege.

The term of court expired on February 10, 1934, and the order overruling the plea of privilege was entered on the preceding day. The cause was appealed to the Dallas Court of Civil Appeals, and that court, on April 28, 1934, granted appellant an extension of thirty days in which to file the record.

Thereafter the cause was by the Supreme Court transferred to this court, and a motion by appellee to dismiss the appeal for failure to file the record in time, and which had been filed in the Dallas Court, was also passed to us for disposition. The record was not filed in the Dallas Court until May 28, 1934, 107 days after the term of court had ended and 108 days from the date the plea of privilege was overruled.

The motion for leave to file after time was not filed until 77 days after the term of court had ended and 78 days after the entry of the order.

The order of the Dallas Court granting the motion filed after the time provided in article 1839, as amended by chapter 67, Acts of the 43d Legislature, 1933 (Vernon's Ann.Civ.St. art. 1839), was beyond the power of that court. Florence et al. v. First State Bank of Fate (Tex.Civ.App.)60 S.W.2d 834" court="Tex. App." date_filed="1933-05-24" href="https://app.midpage.ai/document/harkey-v-harkey-5004608?utm_source=webapp" opinion_id="5004608">60 S.W.2d 834; Acola v. J. I. Case Co. (Tex.Civ.App.) 57 S.W.2d 196" court="Tex. App." date_filed="1933-01-26" href="https://app.midpage.ai/document/acola-v-j-i-case-co-3963358?utm_source=webapp" opinion_id="3963358">57 S.W.2d 196.

The transcript here is ordered stricken from the record and the appeal ordered dismissed for failure of appellant to file the record within the time prescribed by the statute.

The motion to strike the statement of facts must also be granted.