Ouida K. Ellis v. Lola R. Endsley

• Court: Court of Appeals of Texas
• Decided: March 1, 1995
• Docket: 03-94-00772-CV
• Status: Published

Opinion

Ellis v. Endsley

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-94-00772-CV

Ouida K. Ellis, Appellant

v.

Lola R. Endsley, Appellee

FROM THE DISTRICT COURT OF BASTROP COUNTY, 335TH JUDICIAL DISTRICT

NO. 20,827, HONORABLE HAROLD R. TOWSLEE, JUDGE PRESIDING

PER CURIAM

Appellant Ouida Ellis attempts to appeal the trial court's judgment rendered after she was served citation by publication. See Tex. R. Civ. P. 109. The trial court signed the judgment in favor of appellee Lola Endsley on April 15, 1993. Ellis, who had answered the petition through an appointed attorney ad litem, thereafter had two years within which to file a motion for new trial. Tex. R. Civ. P. 329(a). Ellis filed her motion for new trial on July 11, 1994.

Because the motion for new trial was filed more than thirty days after the judgment was signed, the appellate timetable began to run from the date the motion for new trial was filed. Tex. R. Civ. P. 306a(7); see 6 Richard Orsinger, Texas Civil Practice § 30:4, at 596 (1992 ed.). Ellis therefore had thirty days from July 11, or until August 10, to perfect her appeal unless her request for findings of fact and conclusions of law extended the time for perfection. Tex. R. App. P. 41(a)(1). While a request for findings of fact was due twenty days from July 11, or August 1, Ellis did not file her request until September 30. Tex. R. Civ. P. 296, 306a(7). Ellis was therefore required to perfect an appeal by August 10.

On October 5, 1994, Ellis filed an affidavit of inability to give cost bond. Because Ellis filed her affidavit more than thirty days after she filed her motion for new trial, the affidavit was untimely. ⁽¹⁾ Tex. R. Civ. P. 306a(7); Tex. R. App. P. 41(a). We are therefore without jurisdiction over the appeal. Davies v. Massey, 561 S.W.2d 799, 801 (Tex. 1978); Willis v. Texas Dep't of Corrections, 834 S.W.2d 953, 953 (Tex. App.--Tyler 1992, no writ).

We dismiss the appeal for want of jurisdiction.

Before Justices Powers, Kidd and B. A. Smith

Dismissed for Want of Jurisdiction

Filed: March 1, 1995

Do Not Publish

1.   Although the transcript does not show that Ellis notified the court reporter that she filed an affidavit of inability to give cost bond, we do not address this defect in light of Ellis' untimely perfection of appeal.