delivered the opinion of the Court.
Thе Court of Civil Appeals dismissed the attempted appeal of Neuhoff Bros., Packers, because an appeal bond was nоt timely filed. Neuhoff Bros., Packers v. Acosta,
In determining the correctness of this action it is necessary to construe that part of Rule 356, Texas Rules of Civil Procedure, which reads as follows:
“Whenever a bond for costs on appeal is required, the bond shall be filed with the Clerk within thirty dаys after rendition of judgment or order overruling motion for new trial.”
*125 The controlling question may be stated as follows:
In determining the time for filing an appeal bond under the rule, may one litigant rely upon his opponent’s action in filing a motion for new trial?
This suit was brought under the Fair- Labor Standards Act of 1938, 29 U.S.C.A., Secs. 201-219 by Felipa H. Acosta and numerоus others as plaintiffs against Neuhoff Bros., Packers, as defendants. At various times during the pendency of the action, the trial judge dismissed some 115 рlaintiffs from the suit, including Felipa H. Acosta, the first named plaintiff in the petL tion. The case thereafter proceeded to trial and was submitted to a jury upon a total of 279 special issues. The jury’s findings were for the most part favorable to the defendant, but upon motion filed in аccordance with the provisions of Rule 301, the trial court rendered judgment notwithstanding the finding of the jury on one or more special issues. Thе plaintiffs 1 filed a motion for new trial, asserting six grounds therefor, including the action of the court in dismissing numerous plaintiffs from the suit. However, when the defendant filed no appeal bond within thirty days after the date of rendition of judgment, plaintiffs decided to accept the judgment and requestеd leave of the court to withdraw their motion for new trial. 2 Such leave was granted by the court and the motion was withdrawn. An appeal bond was thereafter filed by petitioner. The date of the filing was more than thirty days after the date of rendition of judgment but within thirty days from the date of thе order permitting plaintiffs to withdraw their motion for new trial.
In the interest of clarity, we set out the following table of pertinent dates, all of which occurred in 1957:
August 26, — Judgment rendered notwithstanding certain jury findings.
September 5, — Plaintiffs’ motion for new trial filed.
October 4, — Plaintiffs’ motion to withdraw motion for new trial filed.
*126 October 4, — Defendant filed an appeal bond.
October 7, — The court rendered an order granting plaintiffs leave to withdraw motion for new trial.
October 7, — Date upon which defendants’ appeal bond could be considered as filed if the date of the withdrawal of the motion can be properly considered as the date the time begins to run for the filing of an appeal bond. 3
The defendant, as petitioner here, contends that the pendency of any motion for new trial should operate to extend the time for filing an appeal bond. It is argued that until such motion is disposed of, no litigant knows whether an appeаl will be necessary or not. However, that may be, we are of the opinion that the question is not an open one with us, but that this Court’s decision in Peurifoy v. Wiebusch,
In the Peurifoy case the plaintiff, Wiebusch, reсovered judgment upon an instructed jury verdict against the defendant, Thomason, and the intervenor, Peurifoy. A nunc pro tunc judgment was entered on August 30, 1932, and this Court held that the right of appeal dated from the entry of such judgment. The various motions filed and steps taken by the parties prior tо August 30, 1932 are immaterial to the point presently at issue. Both Peurifoy and Thomason filed appeal bonds on October 28, 1932.
As to Peurifoy, the opinion discloses that:
“After the entry of thе judgment nunc pro tunc on August 30, 1932, Peurifoy took, within the time fixed by the statute, the several steps for the perfection of his appeal, namely, the filing of original and amended motions for new trial, the presentation of his amended motion to the court, and giving of notice of aрpeal in open court after the overruling of his motion and the filing of his appeal bond.”
As to Thomason it was said that:
*127 “Since Thomason filed no motion for new triаl after the entry of the judgment on August 30, 1932, it was necessary for him to file an appeal bond on or before September 29, 1932, in order to perfect an appeal from the judgment without filing a motion for new trial. Subdivision 31, art. 2092, R.S. 1925.”
Peurifoy’s appeal was held to be effective and Thomason’s attempted appeal was dismissed. The effect of the Court’s holding was that the pendency of Peurifoy’s motion for new trial did nоt have the effect of extending Thomason’s time for filing his appeal bond. If the pendency of a motion by one appellant (thе intervenor in the trial court) does not operate to extend the time of another appellant (the defendant in the trial court), the pendency of a motion by prospective cross-appellants, who were plaintiffs in the trial court, could not operate to extend the time within which the appellant, who was defendant below, was required to file its appeal bond. An attempt to distinguish between appellants or prospective appellants on the basis of the position occupied by them in the trial cоurt would operate to further complicate the situation. In the Peurifoy case, it appeared that although Peurifoy and Thomаson were both appellants, they were actually adverse parties in the trial court. Thomason v. Wiebusch, Texas Civ. App.,
Peurifoy v. Wiebusch was decided in 1935 in accordance with the provisions of the Special Practice Act of 1923, Articles 2092 and 2093 of the 1925 Revised Statutеs. See, Collier, The Special Practice Act in Texas, 6 Southwestern Law Journal 193. However, there is no substantial difference betweеn the wording of Article 2092, Sec. 31 and Rule 356 insofar as the time for filing an appeal bond is concerned. 4
The judgment of the Court of Civil Appeals dismissing the attempted appeal is affirmed.
Opinion delivered July 15, 1959.
Rehearing overruled October 7, 1959.
“In appeals from such civil district courts the appeal bond shall be filed within thirty days after the judgment or order appealed from is rendered, if no motion for new trial is filed, and if a motion for new trial is filed, the appeal bond shall be fixed within thirty days after the motion for new trial is overruled * *
Notes
. - — Some 160 parties were named as plaintiffs in the original petition. One hundred fifteen wеre dismissed from the suit and 45 were awarded recoveries against the defendant in varying amounts. The motion for new trial was filed on behalf of аll the original parties plaintiff including those dismissed from the suit, as well as those who recovered judgment.
. —This request was filed on behalf of the same parties who filed the motion for new trial, that is, the parties plaintiff named in the original petition.
. — Insofar as pertinent hereto, Rule 306с reads as follows:
“No * * * appeal bond * * * shall be held ineffective because prematurely filed, but * * * every such appeal bоnd * * * shall be deemed to have been filed on the date of but subsequent to the rendition of the judgment appealed from or from the date of the overruling of motion for new trial, if such motion is filed.”
. — Article 2092, Sec. 31 provides that: