Sunray Enterprises, Inc. v. Rosenaur

On Rehearing

Under Rule 414, T.C.P., appellee’s reply brief was required to be filed in this Court by March 16, 1959. He was duly notified of date of submission which was November 24, 1959. Our opinion of reversal and remand was of March 25, 1960, and fourteen days later (April 8) is filed in effect his reply brief of 20 pages but styled “Motion for rehearing”. He simply “apologizes to the Court for failing to file a brief in the first instance”. We have again reviewed this 138-page statement of facts and find that issues of fact are raised therein as demonstrated by the jury issues and answers. In view of all these things we cannot ignore the settled rule reiterated in Texas Employers Ins. Ass’n v. Van Pelt, Tex.Civ.App., 83 S.W.2d 392, 393, “that ap-pellee, having failed to brief the case on original hearing, cannot, on motion for rehearing, challenge the correctness of appellant’s statements. We are justified in adhering to the rule, especially in this case, where the statement of facts consists of more than 650 pages. We cannot be expected to review a record of that magnitude to ascertain the correctness of appellant’s statements when appellee, with ample time *673in which to do so, has failed to file a brief challenging the correctness of such statements.”

Appellee’s motion for rehearing is overruled.