Bingham v. Kimbrell

• Decision Date: 20 June 1951
• Docket Number: No. 9982,9982
• Citation: 241 S.W.2d 252
• Parties: BINGHAM et al. v. KIMBRELL et al.
• Court: Texas Court of Appeals

Page 252

241 S.W.2d 252

BINGHAM et al. v. KIMBRELL et al.

No. 9982.

Court of Civil Appeals of Texas, Austin.

June 20, 1951.

Rehearing Denied July 11, 1951.

Swaim & Swaim, Eden, Paul Petty, Ballinger, for appellants.

John M. Harrod, Eden, Smith & Lear, San Angelo, for appellees.

PER CURIAM.

The transcript in this case was filed in this court on April 23, 1951. It discloses the following facts which pertain to our jurisdiction:

Trial was before a jury. Verdict of the jury was filed December 20, 1950.

On January 3, 1951, appellants filed numerous objections to the verdict of the jury.

On January 4, 1951, judgment was rendered for appellees on the verdict of the jury and on undisputed facts.

Appellants' motion for a new trial was filed January 13, 1951.

A cash deposit for costs in lieu of an appeal bond was made March 26, 1951.

On April 10, 1951, the trial court granted appellants an extension of time for preparing and filing a statement of facts and bills of exception.

The transcript does not show that appellants filed any amended motion for a new trial or that the original motion for new trial was ever presented to or acted upon by the trial court, or that any written agreement was made by the parties concerning such matters.

On May 7, 1951, appellants filed in this court a motion for an extension of time within which to prepare and file a statement of facts. This motion has not been acted upon.

The District Court of Concho County has continuous terms and it is subject to the provisions of Rule 330, Texas Rules of Civil Procedure. See Section (District) 119, art. 199, V.A.C.S.

Subdivision (j) of Rule 330 provides, in part: 'All motions and amended motions for new trials must be presented within thirty (30) days after the original motion or amended motion is filed and must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, unless by written agreement of the parties in the case, the decision of the motion is postponed to a later date.'

If appellants' motion for a new trial was not presented to the trial court then it was overruled by operation of law at the expiration of thirty days from the date on which it was filed. Bowman v. Traders &amp General Ins. Co., Tex.Civ.App., 219 S.W.2d 148 (Austin C.C.A. Writ, Ref.). This date would be February 12, 1951, and the cash deposit made in lieu of an appeal bond on March 26, 1951, would not have been made within the 30-day period prescribed by Rule 356, T.R.C.P., a fact which would destroy our appellate jurisdiction. Barnes v. Raymer, Tex.Civ.App., 224 S.W.2d 516 (Eastland C.C.A.).

We have considered certain correspondence on the part of one of appellants' attorneys and the trial judge as reflecting their respective recollections concerning presentment vel non of the motion for new trial:

The trial judge stated:

'On the 13th day of January, A.D. 1951, as shown by the record, the defendants in the trial court were granted permission to file an amended motion for a new trial; thereafter at a day of the regular term of court, and to the best of my recollection either on the 5th or 19th of February, substantially the following conversation between Mr. E. H. Swaim and myself took place in the District Court room at Paint Rock, Texas.

'Mr. Swaim asked when I could hear the defendants' amended motion for a new trial to be filed later. The question then arose as to the date of the order permitting the defendants to file an amended motion for a new trial. Thereupon, Mr. Swaim went to the office of the District Clerk to get or examine the original court papers and to make sure of the date of the order permitting the amendment. An examination of the court papers showed that more than twenty days had passed since the original order permitting the amendment was entered. Mr. Swaim, thereupon, stated that left only the original motion for a new trial before the court, or words to that effect. I gave no consideration to the motion; and there were no further conversations with...