Anderson v. Casebolt
| Decision Date | 17 January 1973 |
| Docket Number | No. B--3643,B--3643 |
| Citation | 493 S.W.2d 509 |
| Parties | W. J. ANDERSON et al., Petitioners, v. A. R. CASEBOLT, Respondent. |
| Court | Texas Supreme Court |
Elton M. Hyder, Fort Worth, for petitioners.
Cantey, Hanger, Gooch, Cravens & Munn, Robert S. Travis, Fort Worth, for respondent.
Anderson and another sued Casebolt to recover either the contract price or the fair market value of a boat house built by Anderson upon the property of Casebolt. The trial court rendered judgment for defendant Casebolt and the court of civil appeals affirmed. 484 S.W.2d 462. We conclude that the court of civil appeals was without jurisdiction to entertain the appeal because the cash deposit in lieu of a cost bond was not made within the thirty-day period required by Rule 356. 1
The judgment in this case was first signed by the trial judge on August 18, 1971. For purposes of timing the appellate steps, the judgment is deemed rendered that day. Rule 306a. The trial judge then attempted to set that judgment aside and render the same judgment a second time on September 20, 1971. Plaintiffs filed an original motion for new trial on September 30 and an amended motion for new trial on October 20. The trial court entered an order on December 8 purporting to overrule the amended motion for new trial, and a cash deposit in lieu of a cost bond was made on December 30, 1971.
As we pointed out in A. F. Jones & Sons v. Republic Supply Co.,151 Tex. 90, 246 S.W.2d 853 (1952), the trial court may not make an order that simply affirms a former judgment and thereby enlarge the period for perfecting an appeal. See also Brown v. Vander Stucken, 435 S.W.2d 609 (Tex.Civ.App.--San Antonio 1968, no writ); Chantre v. National Maritime Union P. & W. Plan, 425 S.W.2d 659 (Tex.Civ.App.--Beaumont 1968, no writ); Fireman's Fund Insurance Company v. Martinez, 387 S.W.2d 443 (Tex.Civ.App.--Austin 1965, writ ref'd n.r.e.); Bellmead State Bank v. Campbell, 386 S.W.2d 205 (Tex.Civ.App.--Waco 1964, no writ). Cf. City of West Lake Hills v. State ex rel. City of Austin, 466 S.W.2d 722 (Tex.1971). The two judgments in this case are identical except for the date of entry, and the second judgment could serve no purpose other than to enlarge the time for appeal. This conclusion is supported by the trial judge's recital in the order of September 20:
'WHEREAS, . . . counsel for plaintiff did not discover such entry (of August 18) until too late to file a motion for new trial . . ..'
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Dean's Campin' Co. v. Hardsteen, No. 13-05-468-CV (Tex. App. 8/29/2008)
...may not enlarge the time for perfecting an appeal by making an order that simply affirms a former order) (citing Anderson v. Casebolt, 493 S.W.2d 509, 510 (Tex. 1973)). Stephens also notes that rule 306a provides that the date a judgment is signed as shown of record determines the beginning......
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Owens-Corning Fiberglas Corp. v. Wasiak
...of plenary power and identical to the first except for the signature date did not extend the appellate timetables. Anderson v. Casebolt, 493 S.W.2d 509 (Tex.1973); Nolan v. Bettis, 562 S.W.2d 520 (Tex.Civ.App.--Austin 1978, no writ); Stewart v. Fireman's Relief & Retirement Fund Trustees, 4......
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Lane Bank Equipment v. Smith Southern Equipment
...in a material respect to start the appellate timetable running from the modified judgment, as held in such cases as Anderson v. Casebolt, 493 S.W.2d 509 (Tex. 1973). This rule would not affect the court's power to correct a clerical error in the record of a judgment without limitation as to......
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Risher v. Risher, 19067
...effect of the second judgment is to increase the time for appeal. Only in that situation would it contravene Rule 5. Anderson v. Casebolt, 493 S.W.2d 509, 510 (Tex.1973). The distinction, then, is whether the trial court's order, which would restart the time for appeal, has an effect other ......