Stemmons v. Briggs

PELPHREY, Chief Justice. This is an appeal from an order of tbe dis-! triet court of Van Zandt county overruling a plea of privilege. Tbe term of court expired on February 10,' 1934, and tbe order overruling tbe plea of. privilege was entered on tbe preceding dayj Tbe cause was appealed to the Dallas Court of Civil Appeals, and that court, on April 28,' 1934, granted appellant an extension of thir-i ty days in which to file tbe record. Thereafter the cause was by tbe Supreme Couid transferred to this court, and a motion by appellee to dismiss tbe appeal for failure to file tbe record in time, and which bad been' filed in tbe Dallas Court, was also passed to us for disposition. Tbe record was not filed in tbe Dallas Court until May 28, 1934, 107 days after the term of court bad ended and 108 days from tbe date the plea of privilege was overruled. Tbe motion for leave to file after time was not filed until 77 days after tbe term of court bad ended and 78 days after tbe entry of the order. Tbe order of tbe Dallas Court granting tbe motion filed after tbe time provided in article 1839, as amended by chapter 67, Acts óf tbe 43d Legislature, 1933 (Vernon’s Ann. Civ. St. art. 1839), was beyond tbe power of that court. Florence et al. v. First State Bank of Fate (Tex. Civ. App.) 60 S.W.(2d) 834; Acola v. J. I. Case Co. (Tex. Civ. App.) 57 S.W.(2d) 196. Tbe transcript here is ordered ¡stricken from tbe record and the appeal ordered dis *1051 missed for failure of appellant to file the record within the time prescribed toy the statute. The motion to strike the statement of facts must also toe granted.