Benny E. Jay v. Robert E. McCool

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-94-00434-CV Benny E. Jay, Appellant v. Robert E. McCool, Appellee FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. 93-15197, HONORABLE F. SCOTT MCCOWN, JUDGE PRESIDING PER CURIAM Appellant Benny E. Jay perfected an appeal from a judgment rendered in favor of appellee Robert E. McCool in his suit to recover on a note. Because Jay has not filed his brief in this appeal, we will dismiss the appeal for want of prosecution. The Clerk of this Court filed the transcript on August 19, 1994, and the statement of facts on September 1, 1994. After this Court granted Jay's motion for an extension of time to file a brief, his brief was due on January 2, 1995. To date, Jay has submitted neither a brief nor a second motion for an extension of time to file a brief. (1) Accordingly, we dismiss the appeal for want of prosecution. Tex. R. App. P. 60(a)(2), 74(l)(1); Sentinel Pipe Servs., Inc. v. Tandy Computer Leasing, 825 S.W.2d 212, 212 (Tex. App.--Fort Worth 1992, no writ); Dickson v. Dickson, 541 S.W.2d 895, 896 (Tex. Civ. App.--Austin 1976, writ dism'd w.o.j.). Before Chief Justice Carroll, Justices Aboussie and Jones Dismissed for Want of Prosecution Filed: April 5, 1995 Do Not Publish 1. 1 By letter dated January 23, 1995, the Clerk of this Court notified Jay that the appeal was subject to dismissal unless he tendered a motion reasonably explaining his failure to file a brief and showing that McCool had "not suffered material injury thereby." Tex. R. App. P. 74(l)(1); see Tex. R. App. P. 60(a)(2). Jay's counsel responded that he believed the parties had settled the matter. However, this Court has not received a motion to dismiss pursuant to the settlement agreement.