First National Bank of Mineola, Texas v. Farmers & Merchants State Bank of Athens, Texas

• Court: Texas Civil Court of Appeals
• Writing for the Court: DUNAGAN
• Citation: First National Bank of Mineola, Texas v. Farmers & Merchants State Bank of Athens, Texas, 417 S.W.2d 317 (Tex. Ct. App. 1967)
• Decision Date: 01 June 1967
• Docket Number: No. 279,279
• Parties: The FIRST NATIONAL BANK OF MINEOLA, TEXAS, Appellant, v. FARMERS & MERCHANTS STATE BANK OF ATHENS, TEXAS et al., Appellees. . Tyler

Page 317

417 S.W.2d 317

The FIRST NATIONAL BANK OF MINEOLA, TEXAS, Appellant, v. FARMERS & MERCHANTS STATE BANK OF ATHENS, TEXAS et al., Appellees.

No. 279.

Court of Civil Appeals of Texas Tyler.

June 1, 1967.

Rehearing Granted June 29, 1967.

Rehearing Denied July 20, 1967.

Ramey, Brelsford, Flock & Devereux, Tom Ramey, Jr., and Michael Hatchell, Tyler, for appellant.

Brundidge, Fountain, Elliott & Churchill, L. E. Elliott, Dallas, for appellees.

DUNAGAN, Chief Justice.

The appellant brought this suit against appellees as the result of the payment by appellant of certain bank money orders issued by it, upon which the payees' names had been signed without authorization and cashed at Farmers & Merchants State Bank, which collected them from appellant through Texas Bank & Trust Company, both banks guaranteeing all prior endorsements. Appellant predicated its recovery upon two theories: (1) a legal cause of action based upon appellees' guarantee of all prior endorsements and/or (2) an equitable cause of action for money had and received.

The case was tried before the court upon an agreed statement of facts. After formal hearing and presentation of briefs by both parties, the court entered judgment that appellant take nothing. At the request of appellant, the court made findings of fact in accordance with the stipulation of the parties, and the conclusions of law forming the basis of his judgment.

The judgment provides in part:

'On the 3rd day of June, 1966, this cause came regularly on to be heard; * * * and the court having fully considered the matter and being of the opinion that the law is with the defendants:

'It is accordingly ORDERED, ADJUDGED AND DECREED that Plaintiff, * * * take nothing by its suit and that defendants, * * * go hence without day and recover their costs in this behalf expended.

'The plaintiff in open court excepted to the judgment and gave notice of appeal to the Court of Civil Appeals for the 12th Supreme Judicial District of Texas at Tyler.

'This the 29 day of July, 1966.

'Looney E. Lindsey

'JUDGE

'APPROVED AS TO FORM:

'Tom B. Ramey, Jr.

'Attorney for Plaintiff

'L. E. Elliott

'Attorney for Defendants

'FILED 1966 JUL 26 AM 8:39

'K. M. ROSS, CLERK

'115TH DISTRICT COURT

'WOOD COUNTY, TEXAS'

A motion for new trial was not required and none was filed. We are therefore to look to the judgment itself to determine the period within which appellant was required to perfect this appeal by the filing of the appeal bond and transcript with the clerk of this court. Hedley Independent School District v. Doneghy, 358 S.W.2d 724, (Tex.Civ.App., Amarillo, 1962, n.w.h.).

The transcript reflects the following:

Request for findings of fact and conclusions of law was filed on July 26, 1966, a receipt thereof acknowledged by the trial judge on July 29, 1966.

Appeal bond was approved and filed by the District Clerk on August 26, 1966.

On September 26, 1966, the transcript was filed in this court.

The last day for the filing of the appeal bond from the date of June 3, 1966, was July 3rd. However, July 3rd being a Sunday and the following day, July 4th, a holiday, gave the appellant through July 5th to timely file its appeal bond.

The last day for the filing of the appeal bond from July 26, 1966, (the date of filing of judgment) was August 25, 1966.

If the judgment was actually signed on July 29, 1966, the appeal bond and transcript were timely filed.

Rule 306a, Texas Rules of Civil Procedure, provides in part:

'Judges are directed to cause, and attorneys and clerks are directed to use their efforts to cause all judgments, decisions, and orders of any kind to be reduced to writing and signed by the trial judge And the date of signing stated therein; * *

'In determining the periods within which the various steps of an appeal must be taken, the date of rendition of a judgment or other 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 or affidavit in lieu thereof, bills of exceptions, statements of fact in trial and appellate courts, transcript in appellate court, petition for writ of error if appeal is by writ of error, or other procedure in connection with appeal; * * *' (Emphasis added).

As stated by the Advisory Committee in its comments following Rule 306a, Vernon's Annotated T.R.C.P., the purpose of this rule 'is to enable the appellant to ascertain more definitely when the time to perfect an appeal begins to run.' We do not feel that the last date shown in the judgment meets this test.

The last date in the judgment is not shown to be the date it was signed nor is there any word used in connection therewith that could reasonably be construed as meaning 'signed' or as equivalent thereto . Therefore, we do not believe the notation shown immediately above the judge's signature, 'This the 29 day of July, 1966.' is in compliance with Rule 306a, nor even in substantial compliance therewith.

As above reflected on the face of the judgment, same was filed on July 26, 1966. In the case of Lung v. Varga, 400 S.W.2d 1, (Tex.Civ .App., Austin, 1966, n.w.h.) with facts similar to those in this case, the court said:

'We find nothing in the rules which give any legal effect to the date on which a judgment is filed with the Court clerk. Of course the date of such filing is evidence that it was rendered and signed prior thereto, but it does not, of itself, have any legal significance. We are bound in this respect by Rule 306a, T.R.C.P.'

Under Rule 356, T.R.C.P., an appeal bond must be filed within thirty days after the date of rendition of the judgment or order appealed from. Compliance with this rule has been held to be mandatory and jurisdictional to an appeal. The time limits prescribed cannot be dispensed with or enlarged by this court for any reason. Washington v. Golden State Mutual Life Insurance Company, 405 S.W.2d 856, (Tex.Civ.App., Houston, 1966, writ of error ref., n.r.e., 408 S.W.2d 227). Under Rule 306a, for the purpose of determining the time for the various steps on appeal, the date of the rendition of judgment or order appealed from is deemed to be the date upon which the written draft is signed by the trial judge 'as stated therein'. In the present record, there is no express or specific statement in the written draft of the judgment appealed from in respect to the date it was signed. In the absence of such a statement, it must be presumed that the judgment was rendered on the date recited on its face, June 3, 1966--a date more than thirty days prior to the filing of the appeal bond.

In calculating the time from which the various steps of appeal must be taken from the judgment in this case, if it be either the date of June 3, 1966, or the date of its filing, July 26, 1966, a date which was more than thirty days prior to the filing of the appeal bond, appellant's appeal bond was not timely filed.

While the court rules are to be liberally construed to ensure a fair and equitable adjudication of the rights of litigations, still their plain content may not be ignored. Nor do we have power, where questions in respect to our jurisdiction are involved, to waive the requirements of the rules. Rule 306a is in the nature of a proviso or exception to Rule 356. By its terms the presumption there established is applicable only when the date of signing is 'stated therein.' Heard v. Heard, 305 S.W.2d 231, 235, (Tex.Civ.App., Galveston, 1957, writ ref.).

It is elementary that when our jurisdiction is invoked, the transcript must disclose affirmatively that we have such jurisdiction and that if it does not do so, our duty is to dismiss the appeal. Miller v. Esunas, 401 S.W.2d 150, (Tex.Civ.App., Tyler, 1966, writ ref., n. r. e.).

It appearing from the record that this court is without jurisdiction of this appeal, same is accordingly dismissed.

ON APPELLANT'S MOTION FOR REHEARING

Earlier in this term we dismissed this appeal because the transcript failed affirmatively to disclose that we had jurisdiction . Appellant later filed a supplemental transcript from which, in connection with the original transcript, it now appears that we do have jurisdiction. Appellant has moved for rehearing and that we set aside our former order dismissing the appeal. The motion is well taken and our former order is set aside and the appeal reinstated.

As stated in the original opinion dismissing this appeal, the appellant predicated its recovery upon two theories:

(1) A legal cause of action based upon appellees' guarantee of all prior endorsements, and/or

(2) An equitable cause of action for money had and received.

Defendants, in addition to their general denial, allege that 'Defendants specially deny that the endorsements of said money orders were forged, and in that connection affirmatively aver that the remitter, R. L. Steele, was not indebted to the said Billy Hale or L. A. Murdock, at the time of purchasing said money orders from Plaintiff and did not intend that said payees have any interest in them; that neither of them claim any interest in said money orders; that neither of them have ever demanded payment, and that plaintiff has not paid anything to either of them, and has suffered nothing by reason of said money orders.'

STATEMENT OF FACTS

The facts of this cause were undisputed and were stipulated by all parties as follows:

1. All parties are domestic banking corporations performing a general banking business within the State of Texas; the plaintiff is a corporation organized and existing under and by virtue of the laws of the United States of America, and the defendants are corporations existing and operating under the laws of the State of Texas.

2. On May 31, 1962, plaintiff ('drawer' and 'drawee') issued two bank money orders to R. L. Steele, the person who ordered the said money orders, but whose personal...