
    FOUNTAIN et al. v. HOOKS et ux.
    (No. 1816.)
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 21, 1929.
    Rehearing Denied March 20, 1929.
    Holland & Cousins, of Beaumont, for appellants.
    O. S. Parker, of Beaumont, for appellees.
   HIGHTOWER, O. J.

In this case the trial court rendered judgment in favor of the plaintiff, J. B. Hooks, against J. O. Fountain, E. L. Adams, and L. M. Adams, who were some of the defendants, for $26,986.62, iwith interest on that, amount from date of judgment at the rate of 8 per cent, per annum. The judgment also established and foreclosed certain liens on certain real estate and certain personal property as against all defendants to the suit as prayed by the plaintiff Hooks. The judgment further disposed of certain issues involved between the defendant Fountain and his codefendants, E. L. and L. M. AdamS. From the judgment in favor of Hooks, all defendants have appealed by filing a cost bond.

The transcript was filed in this court in due time, but there is no statement of facts with the record, nor have any of the appellants filed a brief.

On the day before the cause was set for submission in this court, appellee filed a written request that the judgment be affirmed, pointing out that there was no fundamental error disclosed by the record. On the day the cause was called for submission counsel for appellants filed in this court a written request that the cause (not the appeal) be dismissed, stating that there was no statement of facts in the record and that appellants had filed no brief. This request was resisted, by counsel for appellee.

As we understand the rule, this court may, in its discretion, dismiss a*n appeal where the appellant fails to file briefs as required by the rules, or may affirm the judgment appealed from, in the absence of fundamental error. But we know of no rule which requires or permits this court to dismiss the cause itself, especially over the protest of the appellee, who urges affirmance where the appellant has filed no brief.

We therefore must overrule appellants’ request to dismiss this cause; and no fundamental error being suggested, and none discovered by us, it is ordered that the judgment of the trial court be in all things affirmed.  