United States v. J. W. Bateson Co.

MARTIN, Justice. This cause was originally filed in the Fifth Court of Civil Appeals at Dallas and has been transferred to this court by the Supreme Court in equalizing the dockets of various courts of civil appeals. The issue involves a motion to dismiss the appeal as filed by the appellees in the cause. The record reveals that, following judgment in the trial court, a motion for a new trial was filed June 30,1952, and an amended motion was filed July 18, 1952. An order purporting to overrule such first amended motion for a new trial was entered January 5, 1953. An appeal bond was filed February 3, 1953. Under Rule 330(j) ,1 Vernon’s Texas Rules of Civil Procedure, the first amended motion for a new trial was overruled by operation of law in 45 days — August 17, 1952. The action of the trial court in entering the order overruling such first amended motion for a new trial on January 5, 1953, was without legal effect. The appeal bond as filed on February 3, 1953, was not filed within the time required to perfect the appeal. The transcript was not filed until the 20th day of March, 1953. Under the issues presented, the appeal must be dismissed. Bowman v. Traders & General Ins. Co., Tex.Civ.App., 219 S.W.2d 148, writ refused; Martinez v. Stephens, Tex.Civ.App., 246 S.W.2d 707; Eldridge v. Lake Whitney Enterprises, Inc., Tex.Civ.App., 231 S.W.2d 466. Footnotes [1] No-w rule 329-b.