American Home Assurance Co. v. Faglie

Court of Appeals of Texas

American Home Assurance Co. v. Faglie

747 S.W.2d 5, 1988 Tex. App. LEXIS 412, 1988 WL 14163

CourtCourt of Appeals of Texas

DecidedFebruary 26, 1988

Docket08-87-00087-CV

StatusPublished

Cited by4 cases

This text of 747 S.W.2d 5 (American Home Assurance Co. v. Faglie) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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American Home Assurance Co. v. Faglie, 747 S.W.2d 5, 1988 Tex. App. LEXIS 412, 1988 WL 14163 (Tex. Ct. App. 1988).

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Opinions

OPINION

WOODARD, Justice.

This is an appeal from a judgment in a workers’ compensation case. A judgment was signed and entered on December 24, 1986. Plaintiffs motion for a “new trial, or in the alternative, to modify, correct or reform judgment” was filed January 22, 1987. In ruling on that motion, a new trial was denied. The first judgment was vacated. These two orders were signed and filed on March 9,1987. A second judgment was filed on that same date. This second judgment indicated it was signed and entered on January 9, 1987. This may have been a clerical error.

Appeal was taken from this second judgment. The certificate of the district clerk in the transcript reflects that the Appellant’s deposit of cash was made in lieu of bond to perfect the appeal on March 23, 1987. Rule 41(a)(1), Tex.R.App.P., provides that security for costs on appeal, whether in the form of a bond, affidavit or cash deposit, “shall be filed with the clerk within thirty days after the judgment is signed, or, within ninety days after the judgment is signed if a timely motion for new trial has been filed by any party.” Compliance with this time table is mandatory and jurisdictional. Glidden Company v. Aetna Casualty and Surety Company, 155 Tex. 591, 291 S.W.2d 315 (1956). The extension of time provided for by motion for new trial relates to a motion for new trial assailing the judgment appealed. Kitchens v. Kitchens, 737 S.W.2d 101 (Tex.App.—Waco 1987). The motion for new trial clearly related to the first judgment that was vacated. The cash deposit was more than thirty days after the second judgment was ostensibly signed. This would render it untimely.

The appeal is dismissed for want of jurisdiction.

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OPINION

WOODARD, Justice.

This is an appeal from a judgment in a workers’ compensation case. A judgment was signed and entered on December 24, 1986. Plaintiffs motion for a “new trial, or in the alternative, to modify, correct or reform judgment” was filed January 22, 1987. In ruling on that motion, a new trial was denied. The first judgment was vacated. These two orders were signed and filed on March 9,1987. A second judgment was filed on that same date. This second judgment indicated it was signed and entered on January 9, 1987. This may have been a clerical error.

Appeal was taken from this second judgment. The certificate of the district clerk in the transcript reflects that the Appellant’s deposit of cash was made in lieu of bond to perfect the appeal on March 23, 1987. Rule 41(a)(1), Tex.R.App.P., provides that security for costs on appeal, whether in the form of a bond, affidavit or cash deposit, “shall be filed with the clerk within thirty days after the judgment is signed, or, within ninety days after the judgment is signed if a timely motion for new trial has been filed by any party.” Compliance with this time table is mandatory and jurisdictional. Glidden Company v. Aetna Casualty and Surety Company, 155 Tex. 591, 291 S.W.2d 315 (1956). The extension of time provided for by motion for new trial relates to a motion for new trial assailing the judgment appealed. Kitchens v. Kitchens, 737 S.W.2d 101 (Tex.App.—Waco 1987). The motion for new trial clearly related to the first judgment that was vacated. The cash deposit was more than thirty days after the second judgment was ostensibly signed. This would render it untimely.

The appeal is dismissed for want of jurisdiction.

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Bluebook (online)

747 S.W.2d 5, 1988 Tex. App. LEXIS 412, 1988 WL 14163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-home-assurance-co-v-faglie-texapp-1988.

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