Opinion
No. 14287.
February 13, 1942.
Appeal from District Court, Clay County; Hon. Earl P. Hall, Judge.
Action between C. D. Parsons and L. C. West. From the judgment, Parsons appeals. On motion for rehearing.
Affirmed.
King, Dawson Jones, of Wichita Falls, for appellant.
Stine, Bunting Stine, of Henrietta, for appellee.
Heretofore, we granted an uncontested motion that was made by appellant to be permitted to file a belated statement of facts.
We granted the motion because we believed that, the transcript having been filed within ample time, and good cause, in our opinion, having been shown for not filing the statement of facts on time, we had the authority, under our discretion, to enter an order permitting the statement of facts to be filed.
The statement of facts was prepared and filed in the trial court in due season, but same was not taken from the District Clerk's office within seventy-five (75) days from the date of rendition of judgment, and no motion was made within such seventy-five days requesting an extension of time within which to file the statement of facts.
The seventy-five days from and after judgment was rendered ended on June 17, 1941, and the motion for permission to file same was filed in this court on August 13, 1941.
Having ordered the filing of the statement of facts we naturally considered same in arriving at a judgment in the case.
We are now confronted with a motion for a rehearing, filed by the appellee, in which, for the first time, objection is made in this court to the filing of the statement of facts and in which there is a motion to strike the statement of facts because same was not timely filed and because no motion was made for an extension of time to file same at or before the expiration of the time provided for such motions in Rule 386, Rules of Civil Procedure.
From the opinion in Hidalgo County Water Control Improvement Dist. No. 1 v. Van Horn et ux., 125 Tex. 486, 84 S.W.2d 699 (Supreme Court), we gather that the case before us is, in all of its essentials, "on all fours" with the cited authority.
See also the authorities cited in the opinion.
It appears to us that, when the motion to extend time for filing the transcript or the statement of facts is filed with us after the expiration of seventy-five (75) days from the date from which the appeal is taken, we are without authority to consider the motion and are, therefore, divested of all discretion in the matter.
The motion to strike the statement of facts is granted, the motion for a rehearing is granted and the judgment heretofore rendered by us on November 7, 1941, is set aside and the former opinion rendered on said date is withdrawn and the following opinion is this day rendered in this cause:
Opinion.
We have only the transcript before us, since the statement of facts has been stricken from the record on motion.
Findings of facts and conclusions of law were filed by the trial court, in which this cause was tried to the court.
The judgment is supported by the findings and we must presume that evidence was introduced to sustain the findings.
We find no fundamental error in the record, and the judgment of the trial court is affirmed.