Goff v. Tuchscherer
| Decision Date | 16 April 1981 |
| Docket Number | No. 1835,1835 |
| Citation | 614 S.W.2d 934 |
| Parties | Tommy GOFF, Appellant, v. Ernst TUCHSCHERER, Appellee. |
| Court | Texas Court of Appeals |
This is an appeal of an order overruling a plea of privilege. The trial judge refused to transfer the cause to the county of residence of appellant Goff, thereby upholding appellee's contention that the written contract between appellant and appellee Tuchscherer required the performance of the obligation in Hidalgo County. Tex.Rev.Civ.Stat.Ann. art. 1995, subd. 5(a) (Supp.1980).
Ernst Tuchscherer, appellee, and Tommy Goff, appellant, entered into a purchase agreement involving the sale of certain real property located in Hidalgo County. After the closing date for transfer of the property had passed, appellee brought suit for damages for non-performance of the contract, and, in the alternative, for specific performance of the contract. Appellant filed his plea of privilege asserting his right to be sued in the county of his residence, Tarrant County. In his controverting affidavit, appellee urged the trial court to overrule the plea based on the venue exception embodied in subdivision 5(a) of article 1995 (1980):
The trial court overruled the appellant's plea of privilege. Goff appeals.
Gentlemen:
In reference to the hearing had on September 18, 1980, in the above styled and numbered cause, the Court has made the following ruling:
The Plea of Privilege of (sic) overruled.
Please prepare and present an appropriate order refecting (sic) the Court's ruling.
The letter (or a reproduction thereof) has stamped thereon in form and substance as follows:
________________________________________
RECEIVED
NOV 5 1980
DISTRICT CLERK
HIDALGO COUNTY, TEXAS
EDINBURG, TEXAS
________________________________________
If judgment was in fact rendered on the 5th of November, 1980, appellant did not timely perfect his appeal by filing his cost bond within 20 days (his certificate of deposit in cash in lieu of cost bond was filed on November 26, 1981, one day late) in compliance with Rule 385(a), T.R.C.P., nor did he file the record with this Court within 20 days (the transcript was filed on December 15, 1980, twenty days late) in compliance with Rule 385(b). This appeal is under the Rules before the amendments thereof effective January 1, 1981.
An examination of the transcript in this case reveals that the trial judge filed with the District Clerk the above signed letter on November 5, 1980. The transcript reveals, however, that he also signed an "Order Overruling Plea of Privilege" on November 26, 1980. The November 26 order was a nullity. Mathes v. Kelton, 565 S.W.2d 78 (Tex.Civ.App. Amarillo 1978) aff'd, 569 S.W.2d 876 (Tex.Sup.1978).
Rule 385(a), T.R.C.P. (1978) requires the filing of the appeal bond "... within twenty days after rendition of the order appealed from ...." "Rendition" is the judicial act by which the court settles and...
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