De Leon v. Texas Employers Ins. Ass'n

NORVELL, Justice. Appellee moves a dismissal of this appeal • upon the ground that appellant’s appeal bond was not- filed within the time prescribed by Article 2092, § 31, Vernon’s Ann.Civ.Stats. All proceedings here mentioned took place during the year 1941 and before September 1st of that year. The Texas Rules of Civil Procedure have no application to the case and we are not called upon to construe Rule 5, in connection with Rule 330, which is taken from Article 2092, above mentioned. The judgment of the trial court was rendered on February 13th. Prior thereto, on February 6th, appellant had filed a motion for mistrial. An order bearing date of February 28th, overruling this motion, appears in the transcript. [575] On March 10th appellant filed his motion for new trial. The order overruling this motion was rendered on April 8th. The appeal bond was filed on May 8th. The motion for mistrial had “no effect whatever as a motion for new trial, for the reason that same was filed before the judgment of the trial court was rendered.” National Consolidated Bond Corporation v. Burks, 134 Tex. 236, 132 S.W. 2d 851, 852. As a matter of fact, the mo- ' tion filed on March 10th did not purport to be an amendment of the motion for mistrial filed more than twenty days prior thereto, on February 6th. Both motions were disposed of by separate orders. The motion for new trial of March 10th was not filed within ten days after the rendition of judgment on February 13th, as required by Art. 2092, § 29, Vernon’s Ann.Civ.Stats. In an absence of a showing that the trial court entertained and disposed of the motion within thirty days after the rendition of the judgment, said motion is of no effect. Independent Life Ins. Co. of America v. Work, 124 Tex. 281, 77 S.W.2d 1036. Thirty days after February 13th, the judgment of the trial court became as final as if the term of court had expired. Article 2092, § 30, Vernon’s Ann.Civ.Stats. Consequently the trial court, on April 8th, was without power to set aside the judgment as prayed for in the motion for new trial, and its action in connection with said motion was of no effect, and did not operate to extend the time allotted for the filing of an appeal bond, as specified in Article 2092, § 31, supra; National Consolidated Bond Corporation v. Burks, supra. Appellee’s motion is granted and the appeal dismissed.