Magnolia Petroleum Co. v. Klingeman, 12354

• Decision Date: 26 September 1951
• Docket Number: No. 12354,12354
• Citation: 242 S.W.2d 950
• Parties: MAGNOLIA PETROLEUM CO. et al. v. KLINGEMAN et al.
• Court: Texas Court of Appeals

Page 950

242 S.W.2d 950

MAGNOLIA PETROLEUM CO. et al. v. KLINGEMAN et al.

No. 12354.

Court of Civil Appeals of Texas, San Antonio.

Sept. 26, 1951.

Rehearing Denied Oct. 24, 1951.

Roy C. Ledbetter, Sam H. Field, Earl A. Brown, and W. D. Masterson, Jr., all of Dallas, John F. May, Karnes City, for appellants.

J. H. Schleyer, New Braunfels, Fred Klingeman, Karnes City (Cutrer & Cook and W. L. Cook, Jr., all of Houston, of counsel), for appellees.

PER CURIAM.

Appellees have filed a motion to dismiss the appeal in this cause. Their contention is that the motion for a new trial was not amended within twenty days, nor presented to the court within thirty days from its filing, and was therefore overruled by law more than thirty days before the appeal bond was filed, and more than sixty days before the record was filed in this Court, and that therefore we have no jurisdiction to hear such appeal and have no alternative but must dismiss the appeal.

Appellants' motion for a new trial was prematurely filed on April 30, 1951, the judgment not having been signed and filed until May 2, 1951, and thus the motion for a new trial will be regarded as having been filed on the latter date. The motion was not amended within twenty days or presented to the court within thirty days, therefore, under the provisions of the Special Practice Act, Rule 330, Texas Rules of Civil Procedure, it was overruled by operation of law on June 2, 1951. The cost bond was not filed until July 5, 1951, which was more than thirty days after the motion for a new trial was overruled by operation of law and was not filed within the time prescribed by Rule 356(a) T.R.C.P. The record was not filed in this Court within sixty days after the motion for a new trial was overruled by operation of law, and, therefore, was not filed within the time prescribed by the provisions of Rule 386, T.R.C.P.

Appellants contend that the District Court of Karnes County is not governed, as to the time of taking appeals, by the provisions of Rule 330, T.R.C.P., but is governed by the provisions of Rule 320, T.R.C.P. Rule 330 provides, that 'The following rules of practice and procedure shall govern and be followed in all civil actions in district courts in counties where the only district court of said county vested with civil jurisdiction * * * have successive terms in said county throughout the year, without more than two days intervening between any of such terms, * * *.'

Karnes County has only one district court vested with civil jurisdiction and its terms of court are governed by the provisions of Section 81 of Article 199, Vernon's Ann.Civ.Stats., reading in part as follows:

'The Eighty-first Judicial District shall be composed of the Counties of Karnes, * * * and the terms of the District Court are hereby designated and shall be held therein each year as follows: * * *

'In the County of Karnes on the first Monday in May, and the first Monday in November. * * *

'Each term of Court in each of such Counties may continue until the date herein fixed for the beginning of the next succeeding term therein.'

Appellants say that inasmuch as such terms 'may' continue until the next term begins, the court is at liberty to adjourn such terms more than two days before the next term begins and therefore the Special Practice Act, Rule 330, supra, does not apply to the District Court of Karnes County. This exact contention was before the Eastland Court of Civil Appeals in National Life & Accident Ins. Co. v. Collins, Tex.Civ.App., 224 S.W.2d 285, and in an opinion in which the Supreme Court refused a writ of error that court overruled the contention. We see no reason to conflict with this decision. See also, Jones v. Campbell, Tex.Civ.App., 188 S.W.2d 679; Federal Underwriters Exchange v. Bailey, 175 S.W.2d 618.

Appellants also contend that...