William Lee Niswanger v. Cheriea Dian Niswanger

• Court: Court of Appeals of Texas
• Decided: November 20, 1996
• Docket: 10-96-00229-CV
• Status: Published

Opinion

Niswanger v. Niswanger

IN THE

TENTH COURT OF APPEALS

No. 10-96-229-CV

     WILLIAM LEE NISWANGER,

                                                                                              Appellants

     v.

     CHERIEA DIAN NISWANGER,

                                                                                              Appellees

From the 13th District Court

Navarro County, Texas

Trial Court # 96-00-06252-CV

MEMORANDUM OPINION

      William Niswanger attempts to appeal from a divorce decree ending his marriage to Cheriea Niswanger. Although the court signed the judgment on July 8, 1996, William did not attempt to appeal until September 16, 1996, more than two months later. Because his action was untimely, we dismiss this attempted appeal for want of jurisdiction. Tex. R. App. P. 41(a)(1), 56(a) 60(a)(2).

      A civil litigant who is not exempt from paying costs may perfect an appeal in one of three ways—filing a cost bond, filing a cash deposit for costs, or filing an affidavit stating that he is unable to pay the costs of the appeal—within thirty days of the judgment. Id. 40(a)(1), (3); White v. Schiwetz, 793 S.W.2d 278, 279 (Tex. App.—Corpus Christi 1990, no writ). There are three methods by which an appellant may extend the thirty-day deadline for perfecting an appeal: (1) filing an appropriate motion, i.e., a motion for new trial or a request for findings of fact and conclusions of law, Tex. R. App. P. 41(a)(1); (2) requesting an extension of time from this court, id. 41(a)(2); or (3) timely filing an instrument that is a "bona fide attempt" to invoke the jurisdiction of the appellate court, Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994). The key is that the filing must be timely, dependent upon the method utilized. Tex. R. Civ. P. 329b(a) (motion for new trial must be filed with thirty days after the judgment or other order is signed); id. 296 (request for finding of facts and conclusions of law must be filed within twenty days after the judgment is signed); Tex. R. App. P. 41(a)(2) (request for extension of time must be filed within fifteen days after the last day that the appeal could be perfected); Benyo v. Hem, 833 S.W.2d 714, 716 (Tex. App.—Houston [1st Dist.] 1992, no writ) (bona fide attempt must itself be timely).

      William attempted to perfect this appeal two months and eight days after the judgment was signed, more than one month too late. On October 17, our clerk notified him that the transcript did not demonstrate that his appeal had been duly perfected. Tex. R. App. P. 56(a), 60(a)(2), 83. He responded by filing a motion and affidavit to proceed in forma pauperis in this court. However, this filing does not demonstrate that he timely perfected his appeal. Thus, even though given the opportunity to cure the defect, he has not shown that he timely perfected his appeal or that he has an excuse for not perfecting the appeal within thirty days of the judgment. Id. 41(a)(1), 83.

       Therefore, we dismiss this cause for want of jurisdiction.

                                                                               PER CURIAM

Before Chief Justice Davis,

      Justice Cummings, and

      Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed November 20, 1996

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