Drawe v. McGuffin

Court of Appeals of Texas

Drawe v. McGuffin

355 S.W.2d 738, 1961 Tex. App. LEXIS 2476

CourtCourt of Appeals of Texas

DecidedMarch 21, 1961

Docket13881

StatusPublished

Cited by8 cases

This text of 355 S.W.2d 738 (Drawe v. McGuffin) 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.

Bluebook

Drawe v. McGuffin, 355 S.W.2d 738, 1961 Tex. App. LEXIS 2476 (Tex. Ct. App. 1961).

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Opinion

POPE, Justice.

Plaintiff' filed suit upon a promissory note, and on April 11, 1960, it was dismissed for non-prosecution. On April 28, seventeen days later, plaintiff filed a motion to reinstate. On May 13, thirty-two days later, the court granted the motion. On October 14, after a trial on the merits, the court rendered a “take nothing” judgment, and plaintiff appealed.

A motion to reinstate is in the nature of a motion for new trial. Love v. State Bank & Trust Co., 126 Tex. 591, 90 S.W.2d 819. When one files a motion for new trial after ten days have expired, it does not operate to extend the court’s jurisdiction over the judgment for a period of more than thirty days from the date of the rendition of judgment. Rule 329b, § 5, Texas Rules of Civil Procedure; Cathcart v. Childers, Tex.Civ.App., 296 S.W.2d 340. Hence, the order of reinstatement on May 13 was made after the court had lost jurisdiction. It had no power to render a “take nothing” judgment. Since there was no timely appeal from the final order of dismissal on April 11, 1960, this Court has no jurisdiction.

The appeal is dismissed.

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POPE, Justice.

Plaintiff' filed suit upon a promissory note, and on April 11, 1960, it was dismissed for non-prosecution. On April 28, seventeen days later, plaintiff filed a motion to reinstate. On May 13, thirty-two days later, the court granted the motion. On October 14, after a trial on the merits, the court rendered a “take nothing” judgment, and plaintiff appealed.

A motion to reinstate is in the nature of a motion for new trial. Love v. State Bank & Trust Co., 126 Tex. 591, 90 S.W.2d 819. When one files a motion for new trial after ten days have expired, it does not operate to extend the court’s jurisdiction over the judgment for a period of more than thirty days from the date of the rendition of judgment. Rule 329b, § 5, Texas Rules of Civil Procedure; Cathcart v. Childers, Tex.Civ.App., 296 S.W.2d 340. Hence, the order of reinstatement on May 13 was made after the court had lost jurisdiction. It had no power to render a “take nothing” judgment. Since there was no timely appeal from the final order of dismissal on April 11, 1960, this Court has no jurisdiction.

The appeal is dismissed.

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Bluebook (online)

355 S.W.2d 738, 1961 Tex. App. LEXIS 2476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drawe-v-mcguffin-texapp-1961.

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