
    SMITH v. SPEARMAN.
    (No. 1415.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 8, 1923.
    Rehearing Denied March 15, 1923.)
    Appeal and error &wkey;»773 (2) ■ — Failure to file briefs held ground for dismissal of appeal.
    Where no brief was filed by either party to an appeal and the transcript was filed in the Court of Appeals on August 28, 1922, the appeal will be dismissed, under rule 38 of the Court of Civil Appeals (230 S. W. viii), effective September 1, 1921, providing that failure to file briefs within the time prescribed shall be ground for dismissal of the appeal.
    Appeal from Martin County Court; A. G. Odom, Judge.
    Suit by Thomas O. Spearman against J. R. Smith. Judgment for plaintiff, and defendant appeals.
    Appeal dismissed.
    J. S. Kendall, of Munday, for appellant.
    Wilson & Douglas, of Lubbock, and Jno. B. Littler and W. Carroll Barnett, Jr., both of Big Spring, for appellee.
   HARPER, C. J.

This suit was instituted by Thos. O. Spearman against B. T. Hill, of Martin county, and J. R. Smith, alleged to be a resident of Knox county, for $192, with interest from November 1, 1920.

Defendant Smith filed a plea of privilege to be sued in Knox county. The plaintiff filed a controverting plea. The court, upon hearing, overruled the plea, and Smith has appealed.

No brief has been filed for either party.

Rule 38 for the Courts of Civil Appeals (230 S. W. viii):

“A failure on the part of counsel for the appellant or plaintiff in error to file assignments of error and briefs in the trial court and in the Court of Civil Appeals within the time and in the manner prescribed by law and by the rules, shall'be ground for dismissing the appeal or writ of error, either by the court of its own motion or on motion of the appellate or defendant in error, unless good cause is shown for such failure and that the appellee or defendant in error has not suffered material injury thereby in his defense of the cause in the appellate court. If the motion be overruled, the Court of Civil Appeals shall give such direction to the cause as it may deem proper.” (Effective September X 1821.)

The transcript was filed in this court August 23, 1922.

The court is therefore of the opinion that the rule should be enforced and this appeal dismissed, and it is so ordered. 
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