537 S.W.2d 787 | Tex. App. | 1976
The West Texas Utilities Company filed a motion to dismiss the appeal contending the court did not grant Sanders’ motion for a new trial on or before January 9, 1976, and it was therefore overruled by operation of law. We agree.
Final judgment was rendered in the above cause on November 14, 1975. Sanders’ motion for new trial was filed November 21, 1975. A written stipulation of the parties recited it was impractical for the court to determine the motion within 45 days after it was filed and the parties agreed the time “for determining the motion for new trial . . . shall be . extended to, and the decision of the motion postponed, until the 9th day of January, 1976.”
The court’s order postponing the hearing on motion for new trial recites:
“1. That the motion of Plaintiffs for new trial shall be argued at 3:00 o’clock p.m. before this court in its courtroom on January 9, 1976;
2. That this court shall act on said motion within 30 days after said argument; and . .”
Sanders deposited cash in lieu of appeal bond on March 5, 1976. A motion for extension of time to file transcript and statement of facts was filed on April 15, 1976.
Article 329b, T.R.C.P., provides in part as follows:
“3. All motions and amended motions for new trial must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, unless by one or more successive written agreements of the parties in the case filed with the clerk of the court the decision of the motion is postponed to a day certain specifically set out in any such agreement. Any such day certain shall not be more than ninety (90) days after such original or amended motion is filed.
4. It shall be the duty of the proponent of an original or amended motion for new trial to present the same to the court within thirty (30) days after the same is filed. However, at the discretion of the judge, an original motion or amended motion for new trial may be presented or hearing thereon completed after such thirty (30) day period. Such delayed hearing shall not operate to extend the time within which the original or amended motion must be determined, unless such time be extended by agreement as provided for in the preceding subdivision of this Rule. In the event an original motion or amended motion for new trial be not presented within thirty (30) days after the date of the filing thereof, and the judge in his discretion refuses to consider the same or refuses to hear evidence relating thereto, such motion will be overruled by operation of law forty-five (45) days after the same is filed, unless disposed of by an order rendered on or before said date. In the event the decision of the motion is postponed by any written agreement as provided in subdivision 3 of this Rule then any such original or amended motion, if not determined by the court, will be overruled by operation of law ninety (90) days after the same is filed or on the latest day certain agreed upon, whichever occurs first.”
The written agreement of the parties postponed the decision on the motion beyond the 45 days to a day certain, namely, January 9,1976. On this date, a hearing was had. The court did not grant Sanders’ motion. It was therefore overruled by operation of law on January 9, 1976.
No appeal bond or cash in lieu of bond was filed or deposited within thirty days after the motion for a new trial was overruled by operation of law as required by Rule 356, T.R.C.P. Sanders’ motion for extension of time to file transcript and statement of facts was not filed until April 15, 1976, which was 97 days after the mo
The motion to dismiss is granted.