
    SPEER v. RUSHING et al.
    (No. 5573.)
    (Court of Civil Appeals of Texas. Austin.
    June 23, 1915.)
    1. Appeal and Ejrkob <&wkey;759 — Assignments of Error in Motion fob New Trial — Repeating Assignments in Brief.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1512, providing that assignments of error in the motion for.new trial, constitute the assignments of error, and need not be repeated by the iiling of assignments of error, the grounds of the motion for a new trial may be copied into tiie brief.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dee. Dig. <&wkey;759.]
    2. Appeal and Error <&wkey;773 — Failure to File and Serve Briefs — Dismissal.
    On appellant’s failure to comply with Rev. C. St. 1911, art. 2115, requiring him to file a copy of his brief 5 days before the time of filing the transcript in the Court of Civil Appeals, and allowing the appellee 20 days after notice of filing within which to file his own brief, the appeal may be dismissed; but where the record in the case was delivered to appellant’s attorney May 11th and filed May 20th, and copy of his brief was filed June 2d and a copy delivered to appellee on the same day, and the case could not be reached before the October term, his failure to file a copy of his brief before taking out the transcript was not prejudicial to ap-pellee, and the appeal would not be dismissed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108-3110; Dec. Dig. &wkey;773.]
    Appeal from District Court, Robertson County; J. C. Scott, Judge.
    Action between A. J. Speer and Will Rushing and others. From the judgment Speer appeals.
    On motion to dismiss appeal. Motion overruled.
    H. S. Morehead and K. W. Gilmore, both of Franklin, for the motion. W. W. Wilson, of Calvert, and Hudson & Hudson, of Bryan, opposed.
   JENKINS, J.

Appellee has filed a motion to dismiss the appeal in this case upon the grounds: (1) That there is no assignment of error in the record; and (2) that appellant did not file his brief in the trial court 5 days before taking out the record, as provided in article 2115, R. S.

Appellant filed a motion for a new trial, and has copied the several grounds thereof in his brief. This is in compliance with article 1012, Vernon’s Sayles’ Ann. Civ. St. 1914, which provides that:

“Where a motion for a new trial has been filed the assignments therein shall constitute the assignments of error and need not be repeated by the filing of the assignments of error.”

An appeal will be dismissed in a proper ease where there has been a failure to comply with article 2115; that is to say, where the failure to comply with said article has resulted in depriving appellee of reasonable time and opportunity to reply to appellant’s brief, and no sufficient excuse for same is shown. Bowden v. Patterson, 108 S. W. 177; Railway Co. v. Martin, 132 S. W. 834; Wiseman v. Maddox, 135 S. W. 756; Hernandez v. Pastran, 140 S. W. 508.

But, while the statute makes failure to comply therewith a ground for dismissing an appeal, it does not require a dismissal in such case, and an appeal will not be dismissed for such cause where the appellee has been afforded ample time and opportunity to file his brief before the cause is submitted. Railway Co. v. Holden, 93 Tex. 211, 54 S. W. 751; Railway Co. v. Wood (Civ. App.) 147 S. W. 283; Gibbs v. Eastham (Civ. App.) 139 S. W. 1166; Morrison v. Harrell (Civ. App.) 139 S. W. 1166; Danner v. Walker-Smith Co. (Civ. App.) 154 S. W. 295; Crenshaw v. Hempel (Civ. App.) 130 S. W. 731; Bull v. Railway Co., 33 Tex. Civ. App. 547, 78 S. W. 525; Deaton v. Feazle (Civ. App.) 85 S. W. 1167.

The record in this case was delivered to appellant’s attorney May 11, 1915, and was filed in this court May 20, 1915. On June 2, 1915, appellant filed a copy of his brief with the district clerk, and his counsel state, in answer to appellee’s motion to dismiss, that they delivered a copy of same to appellee’s attorneys on June 2, 1915. Appellant filed four copies of Ms brief with the clerk of this court on June 4, 1915. Owing to the crowded condition of our docket this case cannot be reached for submission before our October term. It thus appears that appellee has suffered no injury by appellant’s failure to file a copy of his brief with the district clerk before taking out the transcript.

For the reasons stated, the motion to dismiss this appeal is overruled.

Overruled.  