Morris v. Morris

615 S.W.2d 302, 1981 Tex. App. LEXIS 3508

Opinion

OPINION

McDONALD, Chief Justice.

Appellant has filed motion to file transcript and further moves “that his motion for new trial be construed as timely filed”; thus causing the transcript to be timely received.

Appellee and appellant were decreed a divorce on December 5, 1980.

Appellant filed motion for new trial 13 days later on December 18, 1980. The trial court purported to overrule such motion for new trial on January 21, 1981. Appellant gave notice of appeal on February 9, 1981 and filed an affidavit of inability to pay costs on February 17, 1981.

Rule 329b TRCP in effect at that time required a motion for new trial to be filed within 10 days after judgment. Appellant’s motion filed on December 18, 1980, 13 days after judgment was a nullity.

Rule 356 TRCP requires in such situation that plaintiff’s appeal bond (or affidavit in lieu) be filed within 30 days after judgment. Appellant’s affidavit filed on February 17,1981, some 74 days after judgment was a nullity. Wilson v. Worley, Tex.Civ.App. (Waco) NRE, 562 S.W.2d 22; Bellmead State Bank v. Campbell, Tex.Civ.App. (Waco) NWH, 386 S.W.2d 205; Bernal v. The Travelers Ins. Co., Tex.Civ.App. (Waco) NWH, 469 S.W.2d 641; Dillard v. McClain, 159 Tex. 559, 324 S.W.2d 163; Meadors v. Phillips, Tex.Civ.App. (Waco) 614 S.W.2d 610.

Motion to file transcript is denied and the attempted appeal dismissed.

APPEAL DISMISSED.