Hogg v. Washington National Insurance Co.

PER CURIAM. Appellant’s original transcript now on file with this court reveals that appellant’s motion for a new trial was filed on December 11, 1972. The trial court on February 9, 1973, by its written order overruled appellant’s motion for new trial. Under Rule 329b, secs. 3 and 4, Texas Rules of Civil Procedure, all motions and amended motions for new trial must be determined within forty-five days after the original or amended motion is filed, unless a written agreement of the parties in the case is filed with the clerk of the trial court postponing the decision on the motion to a day certain. If the motion or amended motion for new trial is not determined within forty-five days after the filing thereof, such motion will be overruled by operation of law forty-five days after the same is filed, unless extended by written agreement of the parties and filed with the clerk or disposed of by an order rendered on or before said date. In the instant case it appears from the record that appellant’s motion for a new trial was overruled by operation of law on January 25, 1973. Therefore, the order of February 9, 1973, purporting to overrule appellant’s motion for a new trial must be regarded as a nullity since her motion had already been overruled by operation of law on January 25, 1973. Hilliard v. Hines, 403 S.W.2d 442 (Tex.Civ.App., Tyler, 1966, n. w. h.). Therefore, appellant was required to file her appeal bond within thirty days after January 25, 1973, which is the date the motion for new trial was overruled by operation of law. Rule 356, T.R. C.P. However, appellant’s appeal bond was not filed until March 9, 1973, which is more than thirty days after the motion for new trial was overruled by operation of law. Such filing is not in compliance with [27] this rule. The filing of her appeal bond is jurisdictional and cannot be waived. Roth v. Maryland American General Insurance Company, 454 S.W.2d 779 (Tex.Civ.App., San Antonio, 1970, writ ref.); Kimberly Development Corporation v. First State Bank of Greens Bayou, 404 S.W.2d 631 (Tex.Civ.App., Houston, 1966, writ ref., n. r. e.). Appellant has filed her supplemental transcript which contains letters of agreement between the parties in the case extending the time until February 16, 1973, for the trial court to act upon appellant’s motion for a new trial. However, the record shows that these letters of agreement were not filed with the clerk of the trial court until January 26, 1973, which was after the motion for new trial was overruled by operation of law. Even though the letters of agreement were timely made they were not filed before the motion for new trial was overruled by operation of law and therefore comes too late to be in compliance with Rule 329b, T.R.C.P. Texas & New Orleans Railroad Co. v. Arnold, 388 S.W.2d 181 (Tex. 1965). It is without question that when our jurisdiction is invoked, the transcript must disclose affirmatively that we have such jurisdiction and that if it does not do so, our duty is to dismiss the appeal. Hilliard v. Hines, supra, and Miller v. Esunas, 401 S.W.2d 150 (Tex.Civ.App., Tyler, 1966, writ ref., n. r. e. ). Appellant’s appeal bond having not been timely filed the transcripts fail to disclose that we have jurisdiction and the appeal must be dismissed. Hubbard v. Faulks, 159 S.W.2d 919 (Tex.Civ.App., Fort Worth, 1942, n. w. h. ). Appeal dismissed.