Vicki Industries, Inc. v. Hupp Systems, Inc.

521 S.W.2d 733, 1975 Tex. App. LEXIS 2574

• Court: Court of Appeals of Texas
• Decided: April 10, 1975
• Docket: 5433
• Status: Published

Opinions

HALL, Justice.

The appellee brought this suit for money damages and an injunction, asserting that appellant breached in several particulars an agreement between the parties dealing with the manufacture of specialized equipment for compressing and bailing metal. Appellant’s plea of privilege to have the case transferred to Tarrant County, the county of its residence, was overruled. It seeks a review of that order. We dismiss the appeal for want of jurisdiction.

The order overruling the plea of privilege is composed of a single paragraph reading as follows:

“On this the 17th day of January, 1975, came on to be heard Defendant’s Plea of Privilege and the Controverting Plea thereto and the Court, after duly considering the pleadings, evidence and argument of counsel, finds that said Plea of Privilege should be and the same is in all things overruled, to which ruling of the Court defendant duly excepts and gives notice of appeal to the Court of Civil Appeals for the 10th Supreme Judicial District of Texas at Waco.”

The judgment is signed by the trial judge, but it does not contain a statement of the date of signing. It was filed with the clerk of the trial .court on January 20, 1975.

Rule 306a, Vernon’s Texas Rules of Civil Procedure, provides that in determining the periods within which the various steps of an appeal must be taken, the date of rendition of a judgment or order shall be deemed to be the date upon which the written draft thereof was signed by the trial judge “as stated therein.” Absent a statement in the judgment showing the date it was signed, it is presumed to have been signed on the date of actual rendition. Heard v. Heard (Tex.Civ.App.—Galveston, 1957, writ ref.), 305 S.W.2d 231, 235.

Appellant filed its appeal bond on February 10, 1975. In appeals from interlocutory orders, like this one, the appeal bond must be filed within 20 days after rendition of the order. Rule 385. This timetable is mandatory and jurisdictional to the appeal, and it cannot be waived. State v. Gibson’s Distributing Company (Tex.Sup., 1968), 436 S.W.2d 122, 123; Glidden Company v. Aetna Casualty & Surety Company, 155 Tex. 591, 291 S.W.2d 315, 318 (1956). Under this rule, appellant’s appeal bond was due to be filed within 20 days after the judgment was rendered on January 17, 1975; that is, by February 6th. It was filed four days late. Accordingly, we are without jurisdiction and the appeal must be dismissed. The fact that the judgment was filed with the clerk on January 20, 1975, bears no legal significance to the timetable in Rule 385. Heard v. Heard, supra; Lung v. Varga (Tex.Civ.App.—Austin, 1966, no writ hist.), 400 S.W.2d 1, 2.

Appeal dismissed.

ON MOTION TO- REINSTATE APPEAL

By supplemental transcript, appellant has brought forward an amended judgment which shows that it was signed by the trial judge on January 20, 1975. We therefore have jurisdiction. The order of dismissal is set aside. The appeal is reinstated.