Honeycutt v. Doss
| Decision Date | 31 December 1966 |
| Docket Number | No. A--11755,A--11755 |
| Parties | M. I. HONEYCUTT, Petitioner, v. James T. DOSS et ux., Respondents. |
| Court | Texas Supreme Court |
Harless, Bailey & Youngblood, Bruce Youngblood, Dallas, for petitioner.
Luna & Vaughan, Kenneth Vaughan, Dallas, for respondents.
Our jurisdiction to consider the application for writ of error in this case is challenged by respondent on the ground that it was not timely filed.
The court of civil appeals rendered judgment and filed an opinion in the case on July 28, 1966. See 406 S.W.2d 504. On August 12th our petitioner, M. I. Honeycutt, filed his motion for rehearing which was overruled by the court of civil appeals on September 22d with a 'memorandum opinion' reading as follows:
On October 3d Honeycutt filed a second motion for rehearing which was overruled on October 6th without further writing. Application for writ of error was filed by Honeycutt in the court of civil appeals on November 7th.
Rule 468, Texas Rules of Civil Procedure, provides:
'The application shall be filed with the clerk of the Court of Civil Appeals within thirty days after the overruling of the motion for rehearing, or within thirty days after the overruling of a final motion for rehearing if filed under Rule 458, provided that when the thirtieth day falls on Saturday, Sunday or a legal holiday the petition may be filed on the next day following which is neither a Saturday, Sunday nor a legal holiday.'
Timely filing of an application is jurisdictional. Reynolds v. Dallas County, 146 Tex. 372, 207 S.W.2d 362 (1948). If the time within which Honeycutt was required to file his application began to run when his first motion for rehearing was overruled on September 22d, the application was not timely filed. If, on the other hand, the time began to run when his second motion was overruled on November 7th, the application was filed in time. Whether the time began to run when the first motion was overruled or when the second motion was overruled is governed by the second paragraph of rule 458, Texas Rules of Civil Procedure, which reads:
'If the Court of Civil Appeals hands down an opinion in connection with the overruling of a motion for rehearing, a further motion for rehearing may, if the losing party deems same necessary, be filed within fifteen days after such opinion is handed down and the above regulations and those of Rules 460 and 468 shall apply to it as though it were the first motion; but a further motion for rehearing shall not be made as a matter of...
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