Holland v. Foley Brothers Dry Goods Company

324 S.W.2d 430, 1959 Tex. App. LEXIS 2431

• Court: Court of Appeals of Texas
• Decided: April 28, 1959
• Docket: 7084
• Status: Published

Opinions

PER CURIAM.

The opinions in this case dated January 20, 1959, and March 10, 1959, are withdrawn and the following is substituted.

A majority has concluded that this Court does not have jurisdiction of the appeal. The procedural facts disclosed by the record show the appeal bond was not. timely filed and authorities relevant thereto hold that this Court must dismiss the appeal under such circumstances.

Upon jury answers to special issues the trial court entered judgment December 2, 1957. The appellant, as plaintiffs in the trial court, filed motion for new trial on December 12th thereafter. On January 24, 1958, the appellants and the appellees, defendants in the trial court, entered into the following agreement respecting the motion for new hearing:

“I.

“That the time for the hearing of and decision on plaintiffs’ motion for new trial may be postponed beyond such time limits as are set out in said Rule 329b.

“II.

“The parties further agree that the said motion may be heard on Monday, January 27, 1958, at the convenience of the Court, or, at the earliest practicable date thereafter convenient to the Court.”

On Monday, January 27th, hearing was held upon the motion and at completion the judge did not render a decision; instead, he took the motion under advisement. Thereafter, on February 14th the trial judge orally advised the parties that the motion would be overruled. On February 20th following, a written order overruling the motion was filed. Appellants filed their appeal bond April 14, 1958.

Rule 329-b, subd. 3, Texas Rules of Civil Procedure, says:

“All motions and amended motions for new trial must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, unless by written agreement of the parties in the case, the decision of the motion is postponed to a later date.”

The Rule contemplates that postponement to a fixed or certain date be set out in an agreement by parties. Moore v. Decuir, Tex.Civ.App., 286 S.W.2d 471, wr. ref.; Pierce v. Loyd, Tex.Com.App., 131 Tex. 401, 114 S.W.2d 867. Reference to the agreement in this case shows that no fixed or certain date was agreed upon for a decision. The parties agreed that the motion might be heard January 27th or at the earliest practicable date thereafter convenient to the court, and decision thereon might be postponed beyond the time limits set out in the Rule.

Sunday, January 26th was the 45th day after the filing of the motion for new trial. Under Rule 4, Monday, January 27th would be included in computing time within which the motion could be heard and decision be made thereon. Hearing was actually had on the 27th, but no decision was made. No decision having been made on the 27th, the motion for new trial was overruled by operation of law at the expiration of that day.

As applied to this case, Rule 356 requires that a bond for costs on appeal shall be filed with the clerk within 30 days after the date of rendition of order overruling motion for new trial. The bond herein was not filed until March 14th, which is more than 30 days after the motion for new trial was overruled by operation of law. Such filing is not a compliance with the' rules. Jones v. Campbell, Tex.Civ.App., 188 S.W.2d 679, wr. ref.; Lucchese v. Specia, Tex.Civ.App., 281 S.W.2d 725, wr. ref.; Glidden Co. v. Aetna Casualty & Surety Co., 155 Tex. 591, 291 S.W.2d 315.

The appeal is.dismissed.