Dancer v. Miller

ARCHER', Chief Justice. This is an appeal from an order of the District Court dismissing an appeal to the District Court from a judgment of the County Court admitting to probate the will of Lottie Thomas, deceased, dated March 2, 1959. Appellants’ appeal bond was approved on March 3, 1959, and filed in the County Court on March 4, 1959. On April 17, 1959, appellant filed in the District Court a transcript consisting only of a copy of the appeal bond and a copy of the judgment admitting the will to probate. On October 30, 1959, Lillie Miller as next friend and as guardian of Ennis Dotson, Jr., a minor and beneficiary under the will, filed a motion to dismiss the attempted appeal from the judgment of the County Court admitting the will of Lottie Thomas to probate and set out the said order and the date of filing of the copies of the bond and the order admitting the will to probate on April 17, 1959, and prayed that the attempted appeal be dismissed because the filings in the District Court were too late, being more than thirty days from the date of the judgment appealed from; that the record is and was not complete because no transcript of the proceedings in the County Court was filed. On October 30, 1959, the motion was heard and granted, the order being dated January 14, 1960. The District Court found that the facts and law were with the proponents and the appeal was dismissed. Appellant takes the position that Rule 816, Texas Rules of Civil Procedure prevents Rule 5 from making Rule 330(a) a jurisdictional rule. We do not believe such position is tenable. Rule 816 provides that the rules shall not be construed to extend or limit the jurisdiction of the courts nor the venue of actions therein and does not limit other rules. See 6 T.B.J. 276 and 7 T.B.J. 14; United States Steel Corp. v. Strong Drilling Co., Tex.Civ.App., 272 S.W.2d 791. In the recent case of Brooks v. Estate of Kincaid, deceased et al., this court in an opinion by Associate Justice Hughes, 332 S.W.2d 434, a proceeding like this, discussed the rules above mentioned and the cases construing them and affirmed the action of the District Court in dismissing an appeal and we adhere to our former decision and believe it to be determinative of this present appeal and do not see any useful purpose in reciting the rules and cases further. The judgment of the trial court is affirmed. Affirmed.