Lucas v. Windham

Court of Appeals of Texas

Lucas v. Windham

439 S.W.2d 159, 1969 Tex. App. LEXIS 2137

CourtCourt of Appeals of Texas

DecidedMarch 19, 1969

DocketNo. 14710

StatusPublished

Cited by3 cases

This text of 439 S.W.2d 159 (Lucas v. Windham) 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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Lucas v. Windham, 439 S.W.2d 159, 1969 Tex. App. LEXIS 2137 (Tex. Ct. App. 1969).

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Opinion

PER CURIAM.

Appellant, Benjamin D. Lucas, complains of a judgment rendered by a district court of Bexar County establishing the boundary between his lot and a lot owned by appellee, Jeneise Windham.

Appellant’s amended motion for new trial was filed December 18, 1967. On December 19, 1967, the trial court set the motion down for hearing on January 29, 1968. The order overruling the amended motion for new trial was signed on February 14, 1968. The transcript and statement of facts were filed in this Court on April 11, 1968.

According to Rule 329b (4), Texas Rules of Civil Procedure, the amended motion for new trial was overruled by operation of law forty-five days after it was filed, since it was not disposed of by order entered before the expiration of such period. No written agreement of the parties postponing a decision on the motion to a day certain, as contemplated by Rule 329b (3), was filed in the case. Therefore, the motion for new trial was overruled by operation of law on Thursday, February 1, 1968. Rule 386 requires that the transcript and statement of facts be filed in this Court within sixty days from the date that the motion for new trial was overruled by operation of law. This period expired on April 1, 1968. Since no motion for extension of time, as permitted by Rule 386, was filed by appellant, the filing of the record in this Court on April 11, 1968, was not timely, and this Court has no jurisdiction. Rainey v. Isenberg, 349 S.W.2d 733 (Tex.Civ.App.-San Antonio 1961, no writ); Newsfoto Publishing Co. v. Ezzell, 320 S.W.2d 711 (Tex.Civ.App.-Austin 1959, writ ref’d).

Since the motion for new trial was overruled by operation of law on February 1, 1968, the order entered on February 14, 1968, is a nullity and cannot have the effect of extending the time for filing the record in this Court. Flowers v. Muse, 427 S.W.2d 727 (Tex.Civ.App.-San Antonio 1968, writ ref’d); Alamo Federal Credit Union v. Celedon, 415 S.W.2d 717 (Tex.Civ.App.-San Antonio 1967, writ ref’d n. r. e.); Rule 5, T.R.C.P.

The appeal is dismissed.

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PER CURIAM.

Appellant, Benjamin D. Lucas, complains of a judgment rendered by a district court of Bexar County establishing the boundary between his lot and a lot owned by appellee, Jeneise Windham.

Appellant’s amended motion for new trial was filed December 18, 1967. On December 19, 1967, the trial court set the motion down for hearing on January 29, 1968. The order overruling the amended motion for new trial was signed on February 14, 1968. The transcript and statement of facts were filed in this Court on April 11, 1968.

According to Rule 329b (4), Texas Rules of Civil Procedure, the amended motion for new trial was overruled by operation of law forty-five days after it was filed, since it was not disposed of by order entered before the expiration of such period. No written agreement of the parties postponing a decision on the motion to a day certain, as contemplated by Rule 329b (3), was filed in the case. Therefore, the motion for new trial was overruled by operation of law on Thursday, February 1, 1968. Rule 386 requires that the transcript and statement of facts be filed in this Court within sixty days from the date that the motion for new trial was overruled by operation of law. This period expired on April 1, 1968. Since no motion for extension of time, as permitted by Rule 386, was filed by appellant, the filing of the record in this Court on April 11, 1968, was not timely, and this Court has no jurisdiction. Rainey v. Isenberg, 349 S.W.2d 733 (Tex.Civ.App.-San Antonio 1961, no writ); Newsfoto Publishing Co. v. Ezzell, 320 S.W.2d 711 (Tex.Civ.App.-Austin 1959, writ ref’d).

Since the motion for new trial was overruled by operation of law on February 1, 1968, the order entered on February 14, 1968, is a nullity and cannot have the effect of extending the time for filing the record in this Court. Flowers v. Muse, 427 S.W.2d 727 (Tex.Civ.App.-San Antonio 1968, writ ref’d); Alamo Federal Credit Union v. Celedon, 415 S.W.2d 717 (Tex.Civ.App.-San Antonio 1967, writ ref’d n. r. e.); Rule 5, T.R.C.P.

The appeal is dismissed.

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439 S.W.2d 159, 1969 Tex. App. LEXIS 2137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lucas-v-windham-texapp-1969.

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