Lucchese v. Specia

281 S.W.2d 725, 1955 Tex. App. LEXIS 2004

Opinion

PER CURIAM.

Appellee has filed a motion to affirm on certificate because appellants did not file their appeal bond within thirty days after their amended motion for a new trial was overruled by operation of law, Rule 356, Texas Rules of Civil Procedure; and did not file the record in this Court or a proper motion for extension of time within the period prescribed by Rule 386.

The record shows that appellants’ amended motion for a new trial was overruled by operation of law on May 1, 1955. Rule 329-b, T.R.C.P.; Dallas Storage & Warehouse Company v. Taylor, 124 Tex. 315, 77 S.W.2d 1031. The order entered by the trial judge on June 7, 1955, purporting to overrule appellants’ amended motion for a new trial was therefore a nullity,

Appellants’ appeal bond was not filed within the thirty-day period allowed by Rule 356, T.R.C.P., and consequently no appeal was perfected. This Court never acquired jurisdiction of this appeal and our prior action in granting an extension of time to file the record is accordingly set aside. Because of a lack of jurisdiction, we are likewise without authority to affirm the judgment of the trial court upon certificate, Rule 387, T.R.C.P. Appellee’s motion to affirm is overruled and the attempted appeal dismissed for want of jurisdiction.