James R. Westmoreland v. Nancy S. Westmoreland

• Court: Court of Appeals of Texas
• Decided: August 28, 1997
• Docket: 03-97-00317-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-97-00317-CV

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James R. Westmoreland, Appellant

v.

Nancy S. Westmoreland, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT

NO. 96-14182, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

PER CURIAM

A final judgment was rendered in the cause on January 21, 1997. A motion for new trial was filed on February 13, 1997. The timely filed motion extended the appellate timetable to the first business day after ninety days had expired, or to April 22, 1997. Tex. R. App. P. 41(a)(1). Appellant James R. Westmoreland did not file a perfecting instrument until May 16, 1997, which is outside the ninety-day deadline.

Appellant submitted a motion to continue the appeal that explains that he believed the perfecting instrument could be filed 120 days after the judgment was signed. A timely filed perfecting instrument is jurisdictional. Davies v. Massey, 561 S.W.2d 799, 801 (Tex. 1978). Even a mistaken belief regarding the deadline does not excuse the timely filing of a perfecting instrument.

Accordingly, we overrule appellant's motion to continue the appeal and dismiss his two motions for extension of time to file a brief. We dismiss the appeal for want of jurisdiction.

Before Chief Justices Carroll, Justices Aboussie and B. A. Smith

Dismissed for Want of Jurisdiction

Filed: August 28, 1997

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