
    HENSLEY et ux. v. PENA.
    (No. 638.)
    (Court of Civil Appeals of Texas. El Paso.
    Dec. 7, 1916.)
    Afpeal and Error &wkey;>773(2) — Briefs— Failure to File — Dismissal.
    Under Rev. St. art. 2115, providing that not less than five days before the time of filing the transcript in the Court of Civil Appeals, the appellant for plaintiff in error shall file with the clerk of the district court a copy of his brief, and rule 39, Rules for the Courts of Civil Appeals (142 S. W. xiii), making a failure to comply with such provision without showing cause for such failure ground for dismissing the appeal, where appellants have offered no excuse for failing to file a copy of the brief with the clerk of the district court, the appeal must be dismissed.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 3104, 3108; Dec. Dig. &wkey; 773(2).]
    Appeal from District Court, Presidio County; P. R. Price, Judge.
    Suit by Mrs. Antonio Pena against S. J. Hensley and wife. Prom a judgment for plaintiff, defendants appeal.
    Dismissed.
    J. D. Martin, of Ft. Stockton, and K. C. Miller and W. C. Jourdan, both, of Marfa, for appellants. Belcher & Sutton, of Marfa, for appellee.
   HARPER, C. J.

This suit was filed by appellee against appellants in form of trespass to try title to an undivided one-half interest in Survey No. 350, Presidio county, Tex., and also for cancellation of a certain deed. Tried with jury and resulted in a verdict and judgment for plaintiff, from which Hensley appealed.

This cause was tried at the January term, 1916. Transcript reached the clerk of this court May 1, 1916. Copies of appellant’s briefs were offered for filing in this court in October, 1916. There was no offer to file copies in the court below. Article 2115, Rev.. Civ. Stat. of Texas 1911, provides that:

“Not less than five days before the time of filing the transcript in the Court of Civil Appeals, the appellant or plaintiff in error shall file with the clerk of the district court a copy of his brief, which shall be by the derk deposited with the papers of the cause, with the date of filing indorsed thereon. * * *

Rule 39, Supreme Court Rules for the Courts of Civil Appeals of Texas (142 S. W. xiii), provides that a failure to comply with the provisions of the above statute, without showing good cause for not complying therewith, shall be grounds for dismissing the appeal, and appellants have offered no excuse. Appellants filed motion to be permitted to file their briefs in this court, which was overruled, whereupon they filed their motion to dismiss the appeal, and said motion is sustained and appeal dismissed. 
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