Green v. Lanny Ice Truck Supply Co.

OPINION PRESLAR, Justice. This is an appeal from a take-nothing judgment following trial to a jury in an automobile collision case. From such judgment and order overruling his motion for new trial, Harvie Green, plaintiff, duly perfected his appeal and filed the transcript and statement of facts in this court on November 1, 1968. Submission in this court was set for April 18, 1969, and on such date the case was submitted. Appellant has filed no brief and appellee has not elected to file briefs as provided in such circumstances by Rule 416, Texas Rules of Civil Procedure. Appellee appeared on submission and urged that the judgment should be affirmed or the appeal dismissed. Under such circumstances, we are of the opinion that the appellee is entitled to have the judgment of the trial court affirmed. Rule 415, T.R.C.P., provides that the appeal may be dismissed for failure of the appellant to file a brief, or that the court may decline to dismiss the appeal, “whereupon it shall give such direction to the cause as it may deem proper.” We have reviewed the record to determine whether fundamental error exists, Stripling v. Spivey, 57 S.W.2d 173 (error dism’d.), and we have found none. The judgment of the trial court is affirmed.