Connor, Jr. v. Zachry

On Motion to strike out Appellants' Brief. The appellee filed this motion to strike out the brief of the appellants, and alleges as grounds therefor, that a copy of appellants' brief was not filed in the lower court within the time and in the manner required by law and the rules of this court; that if it was ever filed at all in the lower court it was done about the 23d day of January, 1909, and after this cause had been set down for hearing in this court for the 28th day of January, 1909; that appellee had neither notice nor time in which to file his brief in said cause, and that no excuse, reasonable or otherwise, was given by the appellants for *Page 190 the failure to file their brief in the trial court. The facts alleged in the motion are probably sufficient to entitle the appellee to the relief prayed for; but the motion is not sworn to, neither is there any accompanying affidavit, or other evidence in support of the facts alleged. Where the relief sought in a motion depends upon an issue of fact, we think that facts relied on should be supported by evidence presented in some of the forms appropriate to the proceedings. This requirement is especially applicable to motions of which no notice is required to be given to the opposing party, and of which he may have no actual knowledge. We find among the papers of this case the following agreement: "We hereby waive filing and service of the appellants' brief in this cause, and agree that the same may be filed direct by the clerk of the Court of Civil Appeals." This is signed by the attorneys for the appellee. Article 1417 of the Revised Statutes requires the appellant, or plaintiff in error, not less than five days before the time of filing of the transcript in the Court of Civil Appeals, to file with the clerk of the District Court a copy of his brief, which shall be deposited with the papers and notice thereof forthwith given the appellee, or defendant in error. This is the method prescribed by the statute for notifying the appellee, or defendant in error, of the filing of the brief by the party appealing. An inspection of the agreement filed among the papers shows that the appellee in this case has waived that statutory requirement without also imposing any condition as to when the appellant should in fact file his brief in this court. If the brief of the appellant, or plaintiff in error, is filed in this court at any time before the case is submitted, the law is complied with in that respect. Werner v. Kaster, 25 S.W. 317. We do not feel justified in striking out the brief of the appellants because of a failure to comply with the statute as to the time of filing their brief in the trial court when they were relieved of that duty by the appellee, nor because they did not give more notice of the filing to the appellee when there is no agreement requiring them to do so. We may be able to enforce agreements, when properly entered into between parties to an appeal, but we can not make them for the parties. We are asked to postpone the submission of this case, in the event we refuse to sustain the motion to strike out the brief of the appellants, in order that the counsel for appellee may have time to prepare and file his brief. We do not think this request should be granted, for the reason that postponements interfere with the orderly disposition of the cases on the docket of this court, and frequently result in delays in the submission of other cases which the parties are anxious to have determined, and where proper diligence has been exercised to that end. When attorneys, or parties to suits, waive their rights as to the filing of briefs in the lower court, it is within their power in every instance to safeguard their rights by proper terms of agreement. To make the consequence of their failure to do this a ground for postponing the submission of cases would open an avenue to a system of practice which we do not think should receive the sanction of this court. The motion is overruled. *Page 191 Opinion on Submission.