Opinion
No. 13-87-112-CV.
May 14, 1987.
Appeal from the 117th District Court, Nueces County, Jack R. Blackmon, J.
Ralph D. Longbine, pro se.
Reese L. Harrison, Jr., Oppenheimer, Resenbert Kelleher, San Antonio, William R. Anderson, Jr., Sorrell, Anderson Lehrman, Roland L. Leon, Thornton, Summers, Biechlin Dunham, Corpus Christi, for appellees.
OPINION ON MOTION TO DISMISSAppellees have filed a motion requesting this Court to dismiss the appeal because the appellants failed to tender the required filing fee at the time of delivery of the transcript. Tex.R.App.P. 13(a). Appellees' motion is denied.
Appellants timely delivered the transcript. Tex.R.App.P. 54(a). The Clerk of this Court notified the parties that the appeal was subject to dismissal for failure to tender the required filing fee. Tex.R.App.P. 13(i). Upon receipt of such notification, appellants paid the fee, and the transcript was marked "filed" as of its date it was received in this Court.
Appellees argue in their motion to dismiss the appeal, that since the filing fee was untimely tendered, this Court could not "file" the transcript, unless a motion for extension of time was timely filed and granted. Tex.R.App.P. 54(c). We disagree.
Pursuant to Tex.R.App.P. 56(a), this Court has the authority to file and consider a timely delivered transcript, as of its date of its receipt, provided that steps are taken within a reasonable time to cure a defect in the filing. Pursuant to Tex.R.App.P. 13(i), dismissal of an appeal for failure to tender the proper filing fee is discretionary with this Court. This, we decline to do.
Appellees further argue that the appeal should be dismissed, because the appellants failed to give notice of the filing of the cost bond. Failure to give notice is grounds for dismissal of the appeal, if appellee is prejudiced by such failure. Tex.R.App.P. 46(d). Appellees have failed to show this Court that they have been prejudiced in any manner. Appellees' motion to dismiss the appeal is denied.