Kolb v. Central Freight Lines, Inc.

Court of Appeals of Texas

Kolb v. Central Freight Lines, Inc.

456 S.W.2d 561, 1970 Tex. App. LEXIS 2300

CourtCourt of Appeals of Texas

DecidedJune 4, 1970

DocketNo. 4919

StatusPublished

Cited by3 cases

This text of 456 S.W.2d 561 (Kolb v. Central Freight Lines, Inc.) 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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Kolb v. Central Freight Lines, Inc., 456 S.W.2d 561, 1970 Tex. App. LEXIS 2300 (Tex. Ct. App. 1970).

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Opinion

OPINION

WILSON, Justice.

The judgment in this personal injury jury case was rendered December 16, 1969. The prerequisite motion for new trial was filed on the same date. Appellee admits that the written postponement agreement entered into with appellant is that set out in the footnote,¹ and that a hearing was [562]*562had on the date specified, February 26, 1970. March 3, 1970 the court signed an order purporting to overrule the motion for new trial. The transcript was filed in the Court of Civil Appeals April 28, 1970.

Appellee contends that since Rule 329b, subd. 3, Texas Rules of Civil Procedure,² only authorizes written agreements to postpone the decision of the motion for new trial, and not the “hearing”, the quoted agreement may not be construed as one to postpone decision, as distinguished from hearing. Appellee cites Texas Employers’ Insurance Association v. Martin, 162 Tex. 376, 347 S.W.2d 916 (1961), where the Supreme Court expressed doubt that a motion to postpone “hearing” substantially complied with .subdivision 3; and Holland v. Foley Bros. Dry Goods Co. (Tex.Civ.App., Texarkana, 1959) 324 S.W.2d 430, writ ref., holding it essential that the agreement to postpone decision specify a fixed, certain date.³

If this contention should be sustained, under Rule 329b the motion for new trial must be held, of course, to have been overruled by operation of law January 30, 1970, 45 days after it was filed, and the transcript was filed too late. It is not necessary, however, to pass on this contention, or to construe the agreement to determine intention of the parties.

The court did not “determine” the motion on the date specified by the requisite written agreement. It was not determined until five days later. The Rule expressly restricts the postponement by written agreement “to a day certain specifically set out” in the agreement; not to some later date.

The March order purporting to overrule the motion for new trial was a nullity. Flowers v. Muse (Tex.Civ.App., San Antonio, 1968) 427 S.W.2d 727, writ ref. Consequently the motion was overruled by operation of law, under Rule 329b, 45 days after filing, and the transcript was not timely filed. Rule 386. The appeal is dismissed.

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OPINION

WILSON, Justice.

The judgment in this personal injury jury case was rendered December 16, 1969. The prerequisite motion for new trial was filed on the same date. Appellee admits that the written postponement agreement entered into with appellant is that set out in the footnote,¹ and that a hearing was [562]*562had on the date specified, February 26, 1970. March 3, 1970 the court signed an order purporting to overrule the motion for new trial. The transcript was filed in the Court of Civil Appeals April 28, 1970.

Appellee contends that since Rule 329b, subd. 3, Texas Rules of Civil Procedure,² only authorizes written agreements to postpone the decision of the motion for new trial, and not the “hearing”, the quoted agreement may not be construed as one to postpone decision, as distinguished from hearing. Appellee cites Texas Employers’ Insurance Association v. Martin, 162 Tex. 376, 347 S.W.2d 916 (1961), where the Supreme Court expressed doubt that a motion to postpone “hearing” substantially complied with .subdivision 3; and Holland v. Foley Bros. Dry Goods Co. (Tex.Civ.App., Texarkana, 1959) 324 S.W.2d 430, writ ref., holding it essential that the agreement to postpone decision specify a fixed, certain date.³

If this contention should be sustained, under Rule 329b the motion for new trial must be held, of course, to have been overruled by operation of law January 30, 1970, 45 days after it was filed, and the transcript was filed too late. It is not necessary, however, to pass on this contention, or to construe the agreement to determine intention of the parties.

The court did not “determine” the motion on the date specified by the requisite written agreement. It was not determined until five days later. The Rule expressly restricts the postponement by written agreement “to a day certain specifically set out” in the agreement; not to some later date.

The March order purporting to overrule the motion for new trial was a nullity. Flowers v. Muse (Tex.Civ.App., San Antonio, 1968) 427 S.W.2d 727, writ ref. Consequently the motion was overruled by operation of law, under Rule 329b, 45 days after filing, and the transcript was not timely filed. Rule 386. The appeal is dismissed.

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456 S.W.2d 561, 1970 Tex. App. LEXIS 2300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kolb-v-central-freight-lines-inc-texapp-1970.

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