Opinion
No. 2472.
April 29, 1925.
Appeal from District Court, Wichita County; E. W. Napier, Judge.
Smoot Smoot and J. A. Hughes, all of Wichita Falls, for appellants.
C. M. McFarland and Fischer Fischer, all of Wichita Falls, for appellee.
The appellants have filed no brief in this case. Appellee files a brief, which is substantially a motion to affirm, on the failure of appellants to file their brief, because the trial court's judgment is supported by the pleading and the evidence. Rule 39, which was promulgated by the Supreme Court of June 22, 1921, is substituted for the old rule 42 for the Court of Civil Appeals, and reads as follows: "When the appellant or plaintiff in error has failed to prepare the case for submission, by the omission of what is required, after bond or affidavit filed for appeal or writ of error with citation served the appellee or defendant in error, before the call of the case, may file in the Court of Civil Appeals his brief, which the court may, in its discretion, regard as a correct presentation of the case, and upon which it may, in its discretion, affirm the judgment of the trial court, without examining the record further than to see that the judgment is one that can be affirmed under the view presented by the appellee or defendant in error." We have examined the record, and find that the judgment is one that can be affirmed, under the view presented by appellee, as provided by said rule 39, and here affirm the trial court's judgment. Cooper Mfg. Co. v. Golding (Tex.Civ.App.) 163 S.W. 103; Schwartzlose v. Mehlitz (Tex.Civ.App.) 81 S.W. 68; Schulz v. Ruedrich (Tex.Civ.App.) 81 S.W. 324; Ball v. Dignowity (Tex.Civ.App.) 68 S.W. 800; Weinnan v. Spencer, 58 Tex. Civ. App. 244, 124 S.W. 209; Baggett v. Riley (Tex.Civ.App.) 146 S.W. 304; Shuttlesworth v. Armour (Tex.Civ.App.) 168 S.W. 439; Record Co. v. Popplewell (Tex.Civ.App.) 161 S.W. 930; Reece v. Langley (Tex.Civ.App.) 230 S.W. 510.