
    TSUTOMU DYO et al. v. SMITH.
    (No. 1422.)
    (Court of Civil Appeals of Texas. El Paso.
    Feb. 15, 1923.
    Rehearing Denied March 15, 1923.)
    Appeal and error <&wkey;-773(2) — Failure to file brief ground for'dismissal.
    Under rule 38 for the Courts of Civil Appeals (230 S. W. viii), a failure on the part of counsel for plaintiff in error to file a brief is ground for dismissal, unless good cause shown.
    Error from District Court, El Paso County; Ballard Coldwell, Judge.
    Action by Jefferson D. Smith against Tsut-omu Dyo and another. Judgment for plaintiff, and defendants bring error.
    Dismissed.
    A. T. Folsom, of El Paso, for plaintiffs in error.
    John F. Weeks, of El Paso, for defendant in error.
   HARPER, C. J.

Defendant in error brought this action against plaintiff in error Tsutomu Dyo on a promissory note in the principal sum of $1,000. The defendant pleaded payment in part; judgment for $667:18 appealed.

No brief has been filed by plaintiff in error. 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 appellee 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 1, 1921.)

The court is therefore of the opinion that the rule should be enforced, and this writ of error dismissed.

It is so ordered. 
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