Ferree's Band Instrument Tools & Supplies, Inc. v. Claxton

OPINION BISSETT, Justice. Appellant has attempted to perfect his appeal to this Court from the overruling of the motion for new trial by the trial court. The transcript shows that judgment was entered in a non jury case on May 3, 1971. The appellant filed his motion for new trial on May 19, sixteen days after judgment was entered. The trial court overruled the motion for new trial on July 6, 1971. The transcript and statement óf facts were presented to the Clerk of this Court for filing on September 2, 1971. Rule 329b, Texas Rules of Civil Procedure, provides that a motion for new trial must be filed within ten days after judgment has been rendered. The appellant contends that the trial court accepted his motion for new trial. He argues that the court set it down for hearing and the opposing attorneys did not object to the hearing on the motion nor did the opposing attorneys object to the attempted appeal to this Court. He, therefore, argues that these matters have been waived and cannot be complained of in this Court. The trial court cannot enlarge the time for the filing of a motion for new trial, nor may the parties to the appeal waive this requirement. The transcript and statement of facts must be filed in the Court of Civil Appeals in compliance with Rule 386, T.R. C.P. The rules do not permit the waiver of the times specified by the Rules of Civil Procedure. Since the appellant’s motion for new trial was not timely filed the appeal dates cannot be figured from the overruling of the same. The transcript and statement of facts should have been filed in this Court on July 1, 1971. Rule 386, T.R.C.P. Appeal dismissed. SHARPE, J., not participating.