[DOWNLOAD] "Mr. Penguin Tuxedo Rental & Sales v. Ncr Corporation and Sanders Bailey" by Supreme Court of Texas No. C-9178 ~ eBook PDF Kindle ePub Free

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• Title: Mr. Penguin Tuxedo Rental & Sales v. Ncr Corporation and Sanders Bailey
• Author : Supreme Court of Texas No. C-9178
• Release Date : January 25, 1990
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 70 KB

Description

Mr. Penguin Tuxedo Rental and Sales, Inc., sued NCR Corporation and Sanders Bailey. The trial court granted summary judgment
for defendants. Four days before its motion for new trial was due, Mr. Penguin sent the motion by overnight Federal Express
addressed to the "Clerk for the Honorable Bill Thomas, Judge", the trial judge. The next day the secretary for Mr. Penguin's
counsel telephoned the court and was told that the motion had arrived. In fact, the motion did arrive that day but was delivered
to the court administrator. However, the motion was not file-stamped by the district clerk until seven days later, after the
deadline for filing the motion had passed. The trial court set the motion for hearing and denied it. Eighty-eight days after
the summary judgment was signed, Mr. Penguin filed an appeal bond. The court of appeals dismissed the appeal, holding that
the motion for new trial was not timely filed and that consequently the deadline for filing the appeal bond was thirty days
from the signing of the judgment. 777 S.W.2d 800, 802. In Standard Fire Ins. Co. v. LaCoke, 585 S.W.2d 678 (Tex. 1979), the appellant's petition arrived at a United States Post
Office substation on the day of the filing deadline. The postman made two regular daily deliveries from the substation unless
otherwise instructed. Unbeknown to the clerk, a deputy clerk had directed the postman not to make the second regular mail
delivery each day to the clerk's office. Instead, the deputy clerk waited until the following day to pick up the mail that
would have been included in the second regular delivery the preceding day. As a result, the petition was not delivered to
the clerk until the day after the deadline although it would have been timely delivered but for the deputy clerk's instructions
to the postman. The trial court dismissed the action as not having been timely filed, and the court of appeals affirmed. This
Court reversed, holding that "an instrument is deemed filed when it is placed in the custody or control of the clerk." Id.
at 681. The Court concluded that when the petition arrived at the postal substation it "was within the effective control
of the deputy district clerk, even though it was not within his actual physical possession." Id. The Court cited Gonzalez
v. Vaello, 91 S.W.2d 904 (Tex. Civ. App.--San Antonio 1936, writ dism'd), which involved a courthouse janitor who had picked
up at the post office before the relevant deadline a petition addressed to the clerk. The clerk, however, did not actually
receive and file stamp the petition until after the deadline had passed. This Court approved the appealed court's holding
in Gonzalez that the deadline was met, observing that "the plaintiff had done all he could to timely file the instrument".
585 S.W.2d at 681.

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