Angelina County v. McFarland

Decision Date08 January 1964
Docket NumberNo. A-9752,A-9752
Citation374 S.W.2d 417
PartiesANGELINA COUNTY, Texas and Leon Jones, Petitioner, v. Sam McFARLAND, Respondent.
CourtTexas Supreme Court

Garrison, Renfrow, Zeleskey, Cornelius & Rogers, Jack D. Hicks, Lufkin, for petitioners.

Charles K. Ruth, Lufkin, for respondent.

GREENHILL, Justice.

The controlling question is whether, under Rule 386, Texas Rules of Civil Procedure the record in this case was filed in the Court of Civil Appeals in time to have given that court jurisdiction of the appeal.

The suit was instituted by Sam McFarland to recover a sum of money which was being held by the defendant, Leon Jones, the sheriff of Angelina County, Texas. Angelina County intervened, claiming that the money should be turned over to it. The district court, sitting without a jury, decided that the money should go to the county. The Court of Civil Appeals at Beaumont reversed the judgment of the district court, and rendered judgment that the money should be awarded to the plaintiff, McFarland. It directed that its opinion be not published under Rule 452, Texas Rules of Civil Procedure. On motion for rehearing, it was pointed out to the Court of Civil Appeals that the record had not been filed in that court in time under Rule 386. 1 The motion was overruled without opinion. The only point of error before this Court is that the Court of Civil Appeals erred in rendering its judgment of reversal for the reason that it was without jurisdiction because of such late filing.

The following are the dates, all in 1962, relevant to the taking of the appeal, together with the dates relied upon by counsel:

June 15: trial was had in Lufkin, Angelina County. The case was heard by the Honorable O'Neal Bacon who lived in the nearby county of Newton. At the conclusion of the trial Judge Bacon took the matter under advisement and returned to Newton.

June 23: the date of the judgment. The judgment concludes, 'Signed this the 23 day of June, 1962.' The judgment recites that plaintiff McFarland and the defendant-sheriff Jones excepted and gave notice of appeal to the Court of Civil Appeals. June 23rd was a Saturday. Judge Bacon mailed the judgment to H. R. Rolston, attorney for Angelina County, with a letter dated June 26th which directed that it be filed. Rolston was then County Judge of Angelina County and was acting as its attorney. Copies of the letter went to the other counsel and to the Clerk of the Court, all at Lufkin.

June 25: Messrs. Hulon Brown and Dan Brazil, counsel for the defendant-sheriff Jones, filed a motion for new trial.

June 27: the attorney for the plaintiff McFarland received his copy of the letter from Judge Bacon. On this same day, counsel for the intervenor county, Rolston, and the district clerk received their copies of the district judge's letter. Counsel for the plaintiff McFarland contends that this date, June 27th, is the date on which the judgment was entered for the purpose of beginning the times for the steps in the appeal. The judgment was handed to the district clerk by Rolston at Lufkin on June 27th and filed immediately. McFarland did not file a motion for new trial.

July 2: counsel for the plaintiff McFarland filed a written notice of appeal. It may be noted that the notice says that 'the plaintiff * * * gives notice that he desires to appeal * * * from the judgment of said court rendered in said cause on the 23rd day of June, 1962.' (Emphasis added.) It may be further noted that the notice of appeal was given without the plaintiff's having filed a motion for new trial. On this same date, July 2, plaintiff filed his appeal bond.

July 13: the defendant sheriff Jones filed an amended motion for new trial.

July 19: the district judge, Judge Bacon, overruled Jones' amended motion for new trial.

August 8: the defendant Jones filed his cost bond and also a supersedeas bond.

August 23: the transcript and statement of facts were received and filed by the clerk of the Court of Civil Appeals. They had been mailed the day before, August 22, by counsel for the plaintiff McFarland.

In determining whether the record was filed in time in the Court of Civil Appeals it is first necessary to determine the date from which the time began to run; i. e., when the judgment was rendered. Petitioners say that it is June 23rd, the date on which the judgment itself says the judgment was signed. Respondent says the date is June 27th, which is the first day upon which he, other counsel, and the district clerk in Lufkin knew that the judgment had been rendered. He further points out that June 27th was the date upon which the judgment was received and filed by the clerk.

Rule 306a states, 'In determining the periods within which the various steps of an appeal must be taken, the date of rendition of a judgment or order shall be deemed to be the date upon which the written draft thereof was signed by the trial judge as stated therein. This rule shall apply in determining the time within which to file a motion for new trial, notice of appeal, appeal bond * * * statements of fact in trial and appellate courts, transcript in appellate court * * *.' (Emphasis added.)

Under the plain provisions of Rule 306a, June 23, the date on which the judgment recites that it was signed, is the date on which the time began to run for the appellate procedure of the case.

Respondent McFarland argues that the judgment could not have been rendered on June 23 because it fell on a Saturday. He attaches affidavits to the effect that the courthouse in Lufkin, Angelina County, is and was closed on Saturday, and that none of the county employees are expected to work except those of the sheriff's department. Respondent's argument is not sound. No rule or statute provides that a judgment may not be entered on Saturday. It has never been held that the courts of Texas cannot function or enter judgments on a day just because it is a Saturday. To so hold would render the courts powerless to grant, among other things, appropriate emergency relief or to grant injunctions or stay orders on those days.

Next is the question as to whether the record was filed in time. Rule 386 provides, 'In appeal or writ of error the appellant shall file the transcript and statement of facts with the clerk of the Court of Civil Appeals within sixty days from the rendition of the final judgment or order overruling motion for new trial * * *.' (Emphasis added.) There is a provision for an extension of time by the Court of Civil Appeals; but no request for such extension was made, and none was granted.

So under Rule 386, the transcript and statement of facts must have been filed within sixty days from the date on which the judgment was rendered, or sixth days from June 23. Computing the time under the provisions of Rule 4, the 60th day, or the last for filing the record, was August 22. The record was mailed on that date, but was not received until August 23. Rule 5 provides that if the record is properly addressed and mailed on the day before the last day, and other requirements of the rule are met, the record shall be deemed filed in time. But this shall be deemed on the last day for filing. So Rule 5 is of no help to Respondent. And it was received by the clerk after the 60th day. The 60th day was not a Saturday, Sundary, or holiday. So it was filed too late under Rule 386. Rule 4 states that if the last (or 60th) day is a Saturday, Sunday, or legal holiday, the period runs, or is enlarged, until the end of the next day which is not a Saturday, Sunday, or legal holiday. The 60th day here was none of those days.

Respondent next contends that the time at which the sixty days for filing the record began to run was the date of the overruling of the defendant Leon Jones' motion for new trial.

When a case is tried before the court without a jury, an appeal may be taken without the filing of a motion for new trial. But under Rule 323, a motion for new trial may be filed in a non-jury case. If no motion is filed, the time begins to run, under Rule 386, from the rendition of the judgment. If a motion for new trial is filed, Rule 386 provides for the time to begin to run when the motion is overruled. This court in Park v. Essa Texas Corp., 158 Tex. 269, 311 S.W.2d 228 (1958) held that when there had been a non-jury case and the appellant had filed a motion for new trial, though no motion was required, his time began to run from the overruling of his motion.

Here, however, Respondent filed no motion for new trial. It has been heretofore established that the appellant must base his appeal upon his own actions. Peurifoy v. Wiebusch, 125 Tex. 207, 82 S.W.2d 624 (1935); Neuhoff Bros., Packers v. Acosta, 160 Tex. 124, 327 S.W.2d 434 (1959).

In Peurifoy, there was an instructed verdict against defendants Thompson and Peurifoy. As applicable here, Peurifoy filed a motion for new trial, but Thompson did not. Both filed their appeal bonds within thirty days from the overruling of Peurifoy's motion, but Thompson's bond was not filed within thirty days from the entry of judgment. It was held that Thompson's filing was too late, and his appeal was ordered dismissed.

In the Neuhoff Bros. case, Rule 356 required the filing of the appeal bond within thirty days after judgment or order overruling the motion for new trial. This is similar to Rule 386 as to the filing of the record except for the period of time allowed. In Neuhoff, a judgment was rendered for some plaintiffs. Other plaintiffs and the defendants desired to appeal. The appealing plaintiffs filed a motion for new trial, but the defendant did not. Thereafter the plaintiffs asked leave to withdraw their motion for new trial, and leave was granted. The defendant filed his appeal bond within thirty days from the action on plaintiffs' motion for new trial, but more than thirty days from the entry of judgment. It was held that in determining the time for filing the appeal bond, the...

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