182 S.W.2d 751 | Tex. App. | 1944
This case is before us upon a motion of the appellee to dismiss the appeal on the ground that the transcript and statement of facts were not filed in this Court within the time prescribed by law. By Act of the Forty-Eighth Legislature in 1943, Page 23, Chapter
The final judgment in the instant case was rendered by the court on April 3, 1944, and the motion for a new trial was filed the next day, April 4, 1944. It was not presented to the court until May 10, 1944, which was more than the thirty days provided by the rule, nor determined until June 15, 1944, which was more than forty-five days after it was filed. No written agreement of the parties was executed or filed under which the determination of the motion could be postponed to a later date. The motion not having been presented to the court, it was overruled by operation of law at the expiration of thirty days after it was filed, or on May 4, 1944. Even if it had been presented within the thirty days it would have been overruled by operation of law on May 19, 1944. Dallas Storage Warehouse Co. v. Taylor, District Judge,
It is true the cited cases interpret the legislative rule approved March 26, 1930, Acts Fifth Called Session 41st Legislature, Page 227 (Article 2092, R.C.S., Vernon's Ann.Civ.St.), but Section (j) of Rule 330, Texas Rules of Civil Procedure, promulgated by the Supreme Court, is identical in language and must be interpreted to mean the same as the legislative rule.
The record shows that the motion for a new trial was presented to the court on May 10, 1944, which was thirty-six days after it was filed. Under the provisions of the court rule, and the authorities above cited, it is clear that the motion for new trial was overruled by operation of law and the judgment became final long before the motion was determined by the court. Since Rule 386 requires that the transcript and statement of facts be filed in this Court within sixty days after the motion for a new trial is overruled, and they were not filed here until August 4, 1944, more than ninety days after the motion for new trial was overruled by operation of law, the motion of the appellee to dismiss the appeal is well taken and must be sustained. Boren v. Cerf's Trust Estate, Tex. Civ. App.
Appellants contend that the appellee is in no position to urge the dismissal of their appeal and his motion ought not to be sustained, because neither the appellee nor the trial judge raised any objection to the motion for new trial being presented and argued more than thirty days after it was filed and because of certain parol agreements entered into between counsel for the respective parties concerning postponement of the motion. As authority for the contention, they cite us to the case of Croom v. Little, Tex. Civ. App.
In view of what we have said, it is obvious that the parol agreements entered into between counsel for the respective parties were without effect. The transcript and statement of facts not having been filed in this Court within the time provided by the rules of practice, the motion of appellee to dismiss the appeal will be sustained. *818