*1 of Art. 7 or Sections either facts under being Ann.Civ.St., these 1995, Vernon’s up- statute venue general exceptions to appellee relies. which which Section only notice We need cases of may be laid that venue
provides fraud in which county fraud in
committed. above, is suf- analyzed evidence, conclusive, support
ficient, if not judge that at implied finding of cattle and appellant bought the time he had appellee that check to gave his is fraud it. This paying intention county of suit. Wal- was committed Co., County Peanut Lee ler Peanut Co. Court, di- 405, by point.
rectly in af- court is of the trial -
firmed.
CITY CORPUS OF CHRISTI et al.
GREGG
No. 12716.
Court Civil of Texas.
San Antonio.
March 1954.
Rehearing April 28, Denied *2 in contained the judgment and a later
second given the in order over- notice ruling trial, the motion for the new second notice computation controlled as far the of time for the filing bond of under, Rule 356 was concerned. The same Russell, Keys & Wat- Singer, Keys, I. M. would, course, applicable rule of be to the Christi, appellant. son, Corpus for transcript time for filing the in this Court Austin, Tarlton, Moody, B. D. ,386. Dan under McDonald, Rule In 4 Texas Christi, appellees. Corpus for Practice, 18.31, that, Civil it is said § “The (of appeal) given be both after rendition of the and after NORVELL, Justice. motion, rendition of the order on the against the Judgment was rendered below which event the later controls.” Christi, Cоrpus notwithstanding City of Rules jury. of the Rule Texas verdict think We- the rule stated should parties prevailing of Civil Procedure. -is, however, control here. It urged that have filed. a motion to district inoperative such rule City is because upon certificate in ac- affirm this Corpus required give Christi a .not provisions cordance with the of Rule 387. perfect bond to Articles 1174 and .filing the determining In if the time for 2072, Vernon’s Ann.Civ.Stats. In other Rule 386 transcript Court under has words, although ap it is said that party a expired, whether we should we must decide pellant exempt giving from compute rendition the time from date of conclusively proceed bond bound to n from the date over- -the or without filing, a motion for new be ¡the new trial filed ruling motion for a notice of is contained in the City. judgment, nevertheless, be effect must party given exempt where the on Judgment was rendered November controlling bond. There а notice of Al- and contained support precedent theory, and in though motion new trial was not a for adopt absence sug thereof we decline to prerequisite Rule for an under gested construction rule of the which would- filed a motion for new make proce a niсe distinction between 30th, the time November which was within parties permitted to appel dures classes prescribed by 330(k), Rule as November wording provisions lant. The of certain Sunday. 29th was a See Rule 4. An an, Rule interpretation for calls manda motion was filed on Decem- amended tоry operation. and ever harsh in A failure 21st, as December 20th was also a Sun- ber prerequisites to follow certain often results day. This motion was overruled loss of without considera 1,1954, February likewise court on con- public policy, tion of the merits. When the appeál. tained a ordеrly requiring prompt dispatch compute business, the time judicial If we from November demands that such con period transcript for given, purpose policy struction be expired and given However, the motion the rule be this Court will effect. interpretations on certificate por аffirmance should be when a choice of a hand, presented, we granted. interpreta On the other if com- of the rule is tion 1, 1954, February unnecessary pute involving time from hardship tion chosen, filing the not ex- period public should not be harshness pired policy motion should be overruled. likеwise demands that we attend things emphasize
the substance and not quillets In recent the “nice of the law.” A sharp con Elliott, Tex.Civ.App., 259 favoring a decision of struction prevail that when notice of upon reasonably Court held its merits should if '480 n This abundantly by the clear is made purposes pаramount tenable. One Smedley, speaking provide statement of Mr. Procedure Civil the Rules of Justice Neeley Tar for the Court in plainly lawyer with set practicing *3 safely County, 124 rant 132 Tex. S.W.2d may he rules which stated workable quote: which we an provide that rules The follow. with with or judgment may appеal from a appeal argument, “The was that the Su trial. The for new filing out a motion prosecuted judgment from the from statutes preme construed so Court overruling from the order the motion Neeley v. taken. were which the rules that, therefore, new trial and 357, 124 S.W.2d County, Tex. 132 Tarrant that, late, was filed too bond assumes apply to should optional right 101. This filed for new trial is when a motion wording of From the appellants all alike. overruled, appeal an thereafter be cannot a distinction
the rules themselves bond, by appeal filing an describ- taken required to file apрellants between raised ing judgment, as well order as exempt from so appeal those bonds and appeal The is from the order. giving of so to make doing, as in is peal from elec judgment a conclusive appeal in the of appellants’ purpose in judgment. The appellants. On the of tion as to one class appealing is to the effect of so avoid uniformity than discrim contrary, rather which been rendered pro expect from should is what one ination against filing of 'the motion him. Legislature, Undoubtedly the cedural rules. overruling for new trial and the order 2072, had no Articles 1174 and enacting in steps accomplishment in the it municipalities that providing intention of purpose. that is but after procedural option deprived of a be should overruling order the mo- from liti classes of to other which extended .... tion.” Dallas, v. gants. Harmon Cf. Tex.Civ.Apр.,229 S.W.2d nothing particulary magi There is suggested, it for the distinction As a basis phrase, “perfection cal or lethal adopt by analogy the we urged that should appeal.” Whether time for by Court with argument used computed from date be appeals and reviews' writ of regard to overruling or dаte mo statutes as provided various error prac tion for new it is difficult from a See, prior in 1936 thereto. they existed standpoint jurisdiction tical see how to Farmers’ & Merchants’ State seriously upon. of this Court is trenched Jarrell Bank, Tex. S.W.2d 281. 128 99 Bond Consideration of motions for new trial tenable, analogy were would if the we Even appeal proceed a court after plainly to distort stated not be inclined novelty. ings have commenced is We to procedural rule in order conform to a Sanderson, Tex.Civ.App., held in Cude v. expression pattern set forth some оf verbal court, upon that the district years eighteen ago involving in a case writ filed, authority a motion proceedings under statutes which error set aside a non obstante veredicto substantially amended and have been trial, although grant a new However, we do not have here сhanged. judgm'ent perfected. been from had In entirely procedures, different choice two State, 80 Bankston v. Tex.Cr.R. 192 appeal and writ of' as in error- 1064, it like those principle gen S.W. stated as a An from cited. the case above law eral that'a trial court entertain a new quеstion is involved and trail after notice of judgment alone also, compute the time for given. the has been See Dittman v. Model whether Co., Tex.Com.App., 75; date Baking 271 record this Court S.W. Annotation, 345. In Barron the date of the mo- A.L.R. judgment or James, it 145 Tex. tion for new trial. principles as a well-settled bond fundamental law held that you will step you from an than' separate create far more havoc perfecting privilege did not will avert. plea order overruling a proceed election to constitute a conclusive No principle is better established than рarty’s prevent a separate appeal and two courts at appeal from the raising point the same be Nothing time. could more con- involved, there which 38S merits. Rule fusing than to to determine in be unable
provides filing of the record that the your pending, case is addition а bond is essential have two exercising courts *4 However, perfection to the of an the same case at the same time. The rule these that whichever cases demonstrate been, always Texas so as I far am ap- steps (notice or thereof combinations detеrmine, to able that when peal, filing record) filing of bond and perfected the entire is lifted from the appeal, taken the substance perfecting the appellate trial court and transferred to the jurisdiction of the matter of this is that the court, and trial court thereafter thе cannot by per- Court is nowise interfered with any take further which will affect the action upon mitting hearing filing the of and rights parties appeal, of the on until the jurisdictional motion for new No trial. appeal has been the heard and mandate of by holding bastions are that when assaulted appellate the court returned to the trial overruling order motion for new trial court. appeal, that contains a notice of notice supersedes given judgment the the notice complete A statement of the law with so that the time for is reference to this matter is found in Section computed from the motion is date over- 3-A, Tex.Jur., of Volume beginning at ruled, applies and rule that such to all page authority with citation of each appellants dealing classes of We are alike. statement made. procedural here with a matter and in this Section 335 reads as follows: field, when confronted with a choice of possible rule, interpretations of a Appellate considera- “On Jurisdiction prospective tion to the given should be the Court Court.—Jurisdiction Civil operations respective proposed upon under the attaches interpretations. perfection error, An occasional look for- of an writ of or assistance, is, and upon ward be of it is not re- of the quired interpreted that law be by rear vision and of the bond or the, thereof, or, alone. The motion for new trial in casеs affidavit in lieu if affi- prerequisite where it is contested, davit is on may perform contest, or, error, valuable service. It often in case of writ of unnecessary appeals. obviates petition Its use on the of the and bond should thereof, not be or, rendered hazardous and or affidavit in if lieu fraught with danger. contested, We hold that the the overruling affidavit be Elliott, rule contest; announced in jurisdiction Tex.Civ. con- App., fully controls the action of tinues until the case deter- this motion. The to affirmon appellate motion certifi- mined court and its cate is overruled. completely executed below. Perfection controversy transfers the entire to the MURRAY, O.W. Chief (dis- Justice court, appellate and clothes it with senting) . plenary exclusive over the I opinion do controversy, not concur in the entire both as to the majority. matter, give parties subject subject It to is desirable and the a liberal procedure only power construction to the to the of the trial court rules so to as to deny one, modify allow an rather than or set aside before its but if in you adjournment ignore to do so must That is term. ¡have enlarging de* could not the effect say, it doe'sso unless of. appellant time within file the distinct could legally more
termines-.two
n
taken,
record in this Court.
appeal is-
controversies
one
to but
judgment as
from the
having failed
tender
"
qualification, a
Subject to
them.
period
sixty-day
pro-
record here within the
rеviewing court'
suit is
filing,
having
vided for
to file
such
failed
ap-
upon perfection of the
immediately
time,
a motion requesting
enlargement
jurisdiction for
peal, though active
386, supra,
as is
has now
authorized Rule
does
adjudicating the case
purpose of'
here,
lost its right to file the recоrd
compliance
the re-
with
until
not attach
pellee’s
affirmance on certifi-
transcript.
quirements as to
granted.
cate should be
of error
application for writ
“When
perfected
Where an
filed, Supreme Court is
from the
only,
case,
party desiring as in this
im-
jurisdiction of
Court
give
shоuld
be careful
the Court
mediately attaches and
notice until he has made
motions as
*5
au-
without
thereafter
Civil
he
make
them
desires to
and has
acted
any
the case.”
thority
-make
order in
course,
trial court. Of
the rule is
contrary
Corpus
perfected
an the
where
mere
Christi
Thе
appeal
perfect
set notice of
gave
does not
it
when
thereby
had
trial
The trial court
and
lift
case out of the
judgment.
in the
forth
permit
appellate
fil-
and
into
court.
jurisdiction to thereafter
had no
a new
and
ing
a motion for
always
recognized
It has
even
beеn
give effect
jurisdiction to
perfected
after
has been
the trial
337,
Jur.,
Tex.
overruling of
3-A
it.
§
records,
judge has control of his
until
Tex.Civ.App., 243
Hufft,
415;
p.
Garvin v.
term,
-prescribed-
end
or until the time
by Rule-330(1),
during
and
that time he
No. 1 Golden
Co.
Rod Oil
In Golden
may modify
judgment,
or set aside a
but
Tex.Com.App.,
1,
No.
Co.
West Oil
power.
this is
limit
his
Belt
Houston
“A writ of
168,
said:
167,
the Court
S.W.
Ry.
Tex.Civ.App.,
& T.
Hornberger,
Co. v.
deprive the trial
the effect to
error
answered,
question
S.W.
certified
court'of
106 Tex.