Dillard v. McClain

322 S.W.2d 26, 1959 Tex. App. LEXIS 2584

• Court: Court of Appeals of Texas
• Decided: February 10, 1959
• Docket: No. 7115
• Status: Published

Opinion

PER CURIAM.

Appellee filed a motion to dismiss the appeal because the appeal cost bond was not filed within' 30 days after rendition of judgment in the trial court.

Judgment was rendered July 7, 1958. Appellant filed an original motion for new trial July 25th, the 18th day after judgment, and on August 2nd filed an amended motion. The same date, August 2nd, the amended motion was overruled. Thereafter, on August 18, 1958, the appellant filed an appeal cost bond.

The motion for new trial was not filed within 10 days after judgment was rendered as required by Rule 329-b, Sec. 1, Vernon’s Ann.Texas Rules. Neither its filing 18 days after rendition of the judgment, nor filing of the amended motion nor the trial court’s action overruling the amended motion operated to extend the district court’s jurisdiction over the judgment for a period of more than' 30 days from the date of the rendition of judgment. In the absence of a timely filed motion for new trial, Rule 329-b, Sec. 5, which became effective January 1, 1955, expressly terminated the trial court’s jurisdiction 30 days after rendition of the judgment. If the language of that rule leaves any doubt, Rule 5 removes it. See A. F. Jones & Sons v. Republic Supply Co., 151 Tex. 90, 246 S.W.2d 853.

The cost bond in the appeal was filed August 18th, the 42nd day after rendition of the judgment, and therefore does not comply with the requirement of Rule 356 that such bonds be filed within 30 days. The appeal consequently is not perfected and this Court has not acquired jurisdiction to review the appeal on its merits. See Lucchese v. Specia, Tex.Civ.App., 281 S.W.2d 725, wr. ref.; Longview Transit Co. v. Ferchill, Tex.Civ.App., 312 S.W.2d 407, n. w. h.

The appeal is dismissed.