
    TEXAS & P. RY. CO. v. CONNER, Chief Justice, et al.
    (No. 2765.)
    (Supreme Court of Texas.
    March 30, 1921.)
    Courts ©=247(7) — Ruling of Court of Civil Appeals striking briefs in conflict with other decisions,
    Ruling of Court of Civil Appeals for the Second District in striking out the briefs of appellant in a cause pending in such court as not filed in the trial court, as required by Rev. St. 1911, art. 2115, and rule 29 for the Courts of Civil Appeals (142 S. W. xii), held, in conflict with decisions of other Courts of Civil .Appeals, entitling appellant to mandamus from the Supreme Court for certification of the question. to it.
    Proceeding for mandamus by the Texas & Pacific Railway Company against Hon. T. H. Conner, Chief Justice, and others. Writ directed to issue.
    ' Conner & McRae, of Eastland, for relator.
    Stinson, Chambers & Brooks, of Abilene, for respondents.
   PHILLIPS, C. J.

The question for determination in this proceeding is whether or not the ruling of the majority of the Honorable Court of Civil Appeals for the Second District (173 S. W. 988) — Chief Justice Conner dissenting from the ruling (173 S. W. 1201)— in striking out the briefs of the relator, the appellant in a cause pending in that court, is in conflict with certain decisions of other Courts of Civil Appeals. The cause is one within the final jurisdiction of the Court of Civil Appeals; and, accordingly, if the ruling presents a conflict of decision, the relator is entitled to a mandamus for the certification of the question to this Court.

As presented in the relator’s petition for mandamus, the facts are substantially these:

As a judgment defendant in the cause relator perfected its appeal and filed the transcript in the Court of Civil Appeals on April 16, 1914. That Court set the cause for submission for October 24, 1914. The attorneys for the relator omitted to file copies of their brief in the trial court within the time prescribed by the statute, under the belief that the attorneys for the plaintiff in the case, D. C. Cave, and for the other defendants as well, had first verbally and then in writing agreed to waive such filing. Eollowing the filing of the transcript in the Court of Civil Appeals, they in April wrote the attorneys for Cave and for the other defendants as well, and later in May and in July, calling their attention to the execution of the written waiver and its loss, and requesting the execution of a second waiver. To none of these letters was a reply received, — though the letters were duly stamped, addressed and posted. On May 12, 1914, the attorneys for relator mailed to the attorneys for Cave a copy of relator’s brief, and if was received on the following day. This brief was defective in its omission of a citation of some authorities and in some other respects, and later, on September 16, a perfected brief for relator- was delivered to the attorneys for Cave in person. Again, on October 4, 1914, the relator’s attorneys forwarded to Cave’s attorneys a third copy of relator’s brief. It is further alleged in the petition that the attorneys for Cave knew that the attorneys for relator were relying upon their having waived the filing of relator’s brief in the trial court, and never in anywise denied having executed such a waiver, until the filing by them in the Court of Civil Appeals on October 24, 1914, of a motion to dismiss the cause. In this motion only one of the firm of attorneys for Cave denied having made the waiver. The other attorney for Cave entered no such denial. None of the attorneys for Cave claimed not to have had sufficient time in which to brief the case after receiving the relator’s brief. Nor did they make any attempt to brief the case. It is emphasized by Chief Justice Conner in his dissenting opinion that the attorneys for Cave had in nowise suggested not having had ample time in which to answer the relator’s brief, or that they desired to do so.

On October 10, 1914, relator filed in the Court of Civil Appeals its motion praying for permission to file its briefs in that court. The motion was not determined by the court at the time, but its submission postponed until October 23d. On October 24th Cave’s attorneys filed a motion to dismiss the cause for failure of the relator to file its briefs in the trial court, and this motion a majority of the Court of Civil Appeals sustained.

The Court of Civil Appeals did not find that after the receipt of the relator’s brief the attorneys for Cave did not have sufficient time before the submission of the cause to prepare their reply. The original opinion ignores this question and holds that unless the statute was complied with by the filing of copies in the trial court, or such filing was waived by opposing counsel as shown by a written waiver filed in the Court of Civil Appeals, the relator’s brief was not entitled to be considered. On rehearing this was qualified somewhat by the holding that in the absence of a showing of good cause for the failure to comply with the statute and that the opposing party would not suffer injury, the relator’s brief should not be filed. It is reiterated, however, that the statute would become a nullity if, without complying with it, merely the furnishing of the appellant’s brief to the appellee’s counsel were held sufficient.

In International & Great Northern Railroad Go. y. Walters, 181 S. W. 910, it was held by the Court of Civil Appeals for the Fourth District — and such is the holding also in Crenshaw v. Hempel, 60 Tex. Civ. App. 385, 130 S. W. 731, by the Court of Civil Appeals for the Third District — that a cause should not be dismissed for failure to file briefs as required by the statute if the brief was furnished opposing counsel in time for the proper preparation of a reply. This was in accord with the ruling of this Court in Railway Co. v. Holden, 93 Tex. 211, 54 S. W. 751.

It appears here that a copy of relator’s brief was originally furnished Cave’s attorneys in May, five months before the date of the submission of the cause, October 24, and a corrected brief on September 16, and still a third on October 4. In the absence of extraordinary circumstances this must be held to have afforded sufficient time for the preparation of a reply. According to Chief Justice Conner’s dissenting opinion, Cave’s attorneys on the hearing made no contention whatever that it did not give them ample time for the purpose. If this was true, failure to file the briefs in the trial court could not have caused any injury to Cave.

Since the holding of the majority of the court apparently dismisses the fact that Cave’s attorneys were furnished with a copy of relator’s brief in sufficient time for the preparation of their reply, in substance their holding is that the cause should be dismissed notwithstanding such fact. It is plainly in conflict with the decisions referred to.

In their opinion on rehearing the majority of the court say they were not prepared to hold that an injury to Cave would not result if relator’s motion in that court to file its briefs were granted. To have granted the motion on October 23, one day before the submission of the cause, and to which date its submission had been postponed by the court, would not have afforded Cave’s attorneys any reasonable opportunity to prepare a reply if they desired to file such reply, and might have been prejudicial to Cave. But this was not the proper test. The question was not the effect of granting relator’s motion in the Court of Civil Appeals, but whether Cave’s rights were prejudiced by the failure to file the briefs in the trial court. If at all events a copy of the brief was delivered his attorneys in ample time for reply, it is difficult to see how such failure could have resulted. in any injury to him.

The writ of mandamus will accordingly issue to the Honorable Court of Civil Appeals for the certification of the question of the correctness of its ruling. 
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