Young v. Skidmore

COLEMAN, Justice. In this case this Court heretofore on April 23, 1964, orally refused appellant’s motion to direct the Clerk of this Court to file his transcript and ordered the appeal dismissed for want of jurisdiction. Appellant timely filed his motion for rehearing herein on May 6, 1964. The motion for rehearing is now overruled. On April 1, 1964, appellant tendered his transcript to the Clerk of this Court for filing. An examination of the transcript reveals that judgment was “rendered, entered and signed this 3rd day of December, 1963.” Plaintiff’s motion for new trial was timely filed on December 13, 1963, and no amended motion for new trial was filed. The motion was heard on January 24, 1964. The trial court’s formal order overruling said motion for new trial recites: “Entered and Signed this 5th day of Feb. 1964.” The appeal bond of Henry Young was filed on February 28, 1964. Under the provisions of Rule 329-b, Texas Rules of Civil Procedure, the motion for new trial was overruled by operation of law on January 27, 1964. The time allowed for the filing of an appeal bond began to run from that date. The trial court’s order of February 5, 1964 purporting to overrule appellant’s motion for new trial was a nullity, and did not extend the time within which the appeal bond could be filed. Appellant did not perfect his appeal as required by Rule 356, T.R.C.P., because his appeal bond, filed February 28, 1964, was filed more than thirty days after January 27, 1964. Motion for rehearing overruled.