Pierson v. Josef Manufacturing, Inc.

665 S.W.2d 193, 1984 Tex. App. LEXIS 4895

• Court: Court of Appeals of Texas
• Decided: January 16, 1984
• Docket: 05-83-01262-CV
• Status: Published

Opinion

PER CURIAM.

Appellant has filed a motion for rehearing of our dismissal of his appeal for want of jurisdiction. Appellant contends that we have jurisdiction of the appeal because the transcript is not due until ten days after the filing of the cost bond. We do not agree. Accordingly, we deny the motion for rehearing.

Appellant filed a timely motion to extend time for filing the appeal bond. We denied the motion as moot and dismissed the case because appellant had failed to file the transcript or motion to extend time for filing the transcript within fifteen days after the transcript was due, as provided by rule 21c of the Texas Rules of Civil Procedure. See B.D. Click Co., Inc. v. Safan Drilling Corp., 638 S.W.2d 860 (Tex.1982). In his motion for rehearing, appellant contends that the transcript is not yet due because a ruling on the motion for extension of time to file cost bond is a necessary prerequisite. We cannot agree.

Since a timely motion for new trial was filed with the trial court, under rule 356 of the Texas Rules for Civil Procedure, the bond was due within ninety days from the date judgment was signed. An extension of time may be granted if the bond and a proper motion to extend time are filed within fifteen days after the last day allowed. A timely motion to extend time for filing the bond, however, even if granted, does not extend the time for filing the transcript. Rule 386 of the Texas Rules of Civil Procedure provides that if a timely motion for new trial has been filed, the transcript shall be filed within 100 days after the judgment is signed, not ten days after the bond is due. The time for filing the transcript may be extended only upon the filing of a proper, timely motion to extend that time as provided by rule 21c of the Texas Rules of Civil Procedure.

Motion for rehearing denied.