*1 (Tеx.Civ.App. [1st Dist.] writ), because remedy 306a(4), had a under rule which
became effective after the Ortiz
decision, which is follows: 4. No notice judgment. If within
twenty or other
appealable party ad-
versely affected it or his attorney
neither received notice
paragraph acquired this rule nor knowledge
actual then party to that all the mеn- (1)1 peri- in paragraph except
tioned petition
od writ of error begin on
shall the date that such or attorney such ac- received notice or
quired knowledge signing, actual first,
whichever occurred but in no event periods begin
shall such more nine- than
ty days original appealable
other order was 306a(4). Appellant
TEX.R.CIV.P. does not
give us sufficient facts for us to determine his appeal timely perfected
whether 306a(4).
under rule granted.
The motion to dismiss HALES, Appellant,
James R. SON, INC., Appellee. CHUBB Houston, Boanerges, James lant. Houston, Dusеn, Lynn appellee. Van (1st Dist.). Houston DUNN, DUGGAN, LEVY and JJ. Before
OPINION DUNN, Justice. appeals R. Hale order dismiss-
James ing his suit for want one, opin- paragraph quoted 1. See earlier in the ion.
598 Son, (Chubb)
Chubb & Inc. originally Therefore, motions for new trials. interpleader filed this suit as an in 1979. of a motion to reinstate has the Chubb, insurer, deposited the sum оf motion for same effect as a new trial in $12,500, which it had offered as a reward extending perfect- the time paintings, two stolen with the District ing ninety appeal to within Clerk. sought Chubb a declaration of no after the order of liability, the of the money, return and attor- Butts v. Capitоl City Home, Inc., ney’s fees. appellant The suit named the 696, 705 S.W.2d 697 Yance, and Carol Attorney, former District Rule 165a of the Texas Rules of Civil cоnflicting defendants with claims to the governs Procedure the reinstatement of a money. answers, Both defendants filed following cause рros want of counterclaims, and cross-claims for Huber, Hunt, ecution. See Gilbert & fund. The docket sheet reflects that Nichols, Inc., (Tex.1984); 671 869 S.W.2d 1982 thе summary trial court denied a Surety Harris, Aetna Casualty Co. v. by motion filed Chubb. No fur- (Tex.App. S.W.2d 670 1984, — Houston activity ther occurred until when the 1984, writ). no allegedly a to retain by appellant. filed 165a(2) part, provides, Rule that: April 1985, the reappeared On case A motion to reinstate shall set forth the court’s dismissal docket. The docket grounds by and be verified therefore appellant sheet reflects that filed а motion attorney. or his It shall be movant April to retain that denied on 1. On with the clerk SO appellant filed a verified motion to or within of dismissal reinstate the On (Em- period provided Rule 306a. the trial court the order of dismis- added.) phasis sal. The record does not reflect thаt anoth- proper filing accepted It is that now er motion to was filed after the under Rule 165a of a motion to reinstate On the time has the same effect hearing held a as the perfect appeal a and denied the On motion. Butts, 705 motion for new trial. See appeal lant filed Co., 697; v. Ford Motor Speck S.W.2d at error, In points four chal- (Tex.App [14th . —Houston lenges the trial court’s order Dist.], writ). no denying suit for want of properly the motion reinstate is not However, the motion to reinstate. filed, however, not have the effect of it will Court does not to discuss perfect extending the time the merits raised on of the issues See, 697; Butts, S.W.2d at e.g., Chris find bond because we topher filed. App. Dist.], writ). no [14th Generally, a bond costs on required to with the clerk within 30 be filed Butts, plaintiff filed an unverified after the with- motion to reinstate within 30 аfter the signed if in 90 signed dismissing her suit for timely motion for new trial has been filed. plaintiff want of Recently, per Tex.R.Civ.P. 356. cu- file an until 88 days bond opinion riam fоr writ of er- application The court held that ror, Court ruled that: because the reinstate was not Rule 165a verified as Rule it was the mо- properly the court.
tion as 329b fore, the time sign- (Tex.Civ.App.—Dallas to within extended S.W.2d ing Butts, 1964, writ). of the dismissal order. S.W.2d at Accordingly, we find that becаuse Similarly, Christopher, present in the filed an reinstate on properly it prematurely filed, unverified *3 April 17, 1985. The the the under 165a. before triаl court signed until 6. After the Moreover, as further for rein motions signed, the failed to file statement or new trial were filed subse either a new mоtion to reinstate or mo- quent signing to the dismissal
tion for new trial in order to extend the perfecting the time for the perfecting time for days extended to 90 after the order was signed. Appeals The Fourteenth Court held ‘‘unverified, the prematurely filed requirement that an Motion equivalent to Reinstate is days file a cost bond within 30 after trial, a motion for new and it did not extend days judgment signed, is within after the time for is if a motion
ninety days after the dismissal filed, mandatory trial and new signed.” added) (Emphasis Christo jurisdictional. Young Kilroy v. Co. Oil pher v. 269. Texas, (Tex.App.—Houston n.r.e.). rеf 'd writ The court reasoned that because Tex.R. 306c, Accordingly, Civ.P. entitled “Prematurely Filed this jurisdiction. Documents” not amended to want include reinstate, motions to and because mo- required days LEVY, Justice, to be filed within concurring. signed, the dismissal order is trial after should agree I thаt this cause of action court did not a proper motion rein- to for the reasons set out be affirmed but not upon state which it could act. Id. Dunn’s opinion. Justice This Court fore, the jurisdiction trial lost the issues determine See Supreme the Texas Court cause because 306a,
Tex.R.Civ.P. 329b. that a motion to reinstate has determined virtually all as a respects to be treated in present case, Caрitol City new trial. Butts v. verified, prematurely reinstate was but Home, Inc., five before amended, 1986). Tex.R.Civ.P. as Moreover, appel the same time lant did not file his bond until as more than motions Rule 329b trials, just effica and should be for new For this motion to reinstate to be effec- to 90 ciоus in tive, this Court would have to amend add the motion specific to reinstate to the A motion list of documents set out implication qualifies by strong for inclusion Supreme (prematurely Rule 306c 306c, “Prematurely under Rule entitled documents). Documents,” appel extending Filed aрpeal bond solely rule-making power is invested lant’s timetable This judg after final Texas. Tex. from 30 Court of See (Vernon Pamph- we treat thе sec. ment. Gov.CodeAnn. 22.004 subsequent day, on the but 1986). appeals is au- as filed The court of let to, date the dismissal order was impowered enact or amend thorized or proper- i.e., May appeal bond was Runnels, 379 procedure. rules of Beach i.e., ly days, filed within 90 28. An
incidental, quite significant, but result MELODY HOMES MANUFACTURING procedural would be the avoidance of a COMPANY, Appellant, technicality depriving of an adjudication late on the merits when he BARNES, Appellees. Lonnie and Donna clearly indicates his intention to appeal. I jurisdic-
Inasmuch as believe we have tion, appellant’s I will point address Court of concerning ror whether or not the trial Fort Worth. court abusеd its in denying discretion motion to reinstate.
Appellant filed suit in 1980. Between filed,his
1980 and when he first mo- *4 retain,
tion nothing develop he did his Nevertheless, his retain, but the any
take further action until March interrogаtories when he addressed appeared
Chubb. On
again docket, on the dismissal and was
subsequently dismissed on may
The trial court consider the entire
history deciding of a case in whether or not prosecution.
to dismiss for want of State Rotello, 671 S.W.2d
Appellate rеview of dismissal for want of pivoted on whether the trial a clear committed abuse of discretion. Johnson,
Bevil v. 157 Tex. (1957).
Appellant nothing prosecute did years. Only
case for over four after re-
ceiving impending notice of dismissal did keep
he act to the case on the docket. grant-
After the 1984 motion to retain was
ed, again pursue he failed to the case. case,
light history of this we cannot
say that the trial court abused its discre- for want of appellant’s point
I would overrule
ror and of the trial affirm
court.