On Motion for Rehearing.
At a former day of this term, we overruled appellant’s motion to require the clerk to file the record and briefs in this cause and affirmed the judgment of the lower court on certificate. Appellant now insists, under Sayles’ Civil Statutes, art. 1017, by a second motion to file the record, and by a motion for rehearing, that we were in error in the former opinion. The two motions last referred to were filed June 12, 1912. We held in our former opinion that because the first motion to file the record failed to show any reason why either of appellant’s attorneys did not take some decisive action, to the end that the record might be filed within the time, during the month and a half preceding February 9, 1912, that it was insufficient. In this second motion attempt is made to excuse the seeming negligence and want of diligence during that period. It occurs to us that this is matter which should have been set up in the original motion, and the failure to do so is itself a want of diligence. The record was permitted to remain in the hands of the clerk of this court from February 23d to March 2.1st, before the first motion to file the record was filed with the clerk, and no reason is shown for that delay.
[2] All of the motions filed by appellant in relation to this matter are predicated, apparently, upon the assumption that the retention of the record by them, for the purpose of briefing the case before filing the record in this court, would justify to. some extent the delay. Rules 55, 56, and 60 (142 S. W. xv, xvi), Court of Civil Appeals, permit appellant to withdraw the transcript at any time before submission for the purpose of briefing. We readily understand how difficult it is for counsel to brief one case at intervals during the trial of other cases; but the motion showing that the record was in the hands of counsel while engaged in the trial of other cases, we are slow to believe that he would have been greatly discommoded by tying up the record at any time before the 9th of February and sending it to the clerk of this court, with a request that it be filed and returned to him under the above rules. The grounds set forth in the second motion have been held to be reasonable grounds for not preparing and filing a brief within the required time; and the courts are more liberal in construing the rules with reference to filing briefs than they are in the filing of transcripts. The reason of this construction is that justice to the appellee requires that the record be filed and the case docketed without unnecessary delay. Our attention has been called to an erroneous statement of fact in our former opinion as to the time of the arrival of appellant’s attorney at Amarillo, which we have corrected.
For the reasons herein stated and set out in our former opinion, both the motion for rehearing and to file the record are overruled.