Murphy v. Boyt

Citation168 S.W.2d 631
Decision Date10 February 1943
Docket NumberNo. 26805.,26805.
PartiesMURPHY v. BOYT.
CourtSupreme Court of Texas

Llewllyn & Dougharty and F. K. Dougharty, all of Liberty, for appellee.

ALEXANDER, Chief Justice.

The Court of Civil Appeals dismissed this appeal because the transcript was not filed within sixty days after final judgment, as provided in Revised Statutes Article 1839, as amended in 1939, Vernon's Ann.Civ.St. art. 1839.

The judgment recites that the case went to trial on the 30th day of September, 1940, "at a regular term of said court," and proceeded from day to day until the 2nd day of October, 1940, when the evidence was closed; that the court took the case under advisement "and on this the 30th day of October, 1940, at the same term of court," the court rendered judgment for the plaintiff. No motion for new trial was filed. The September term of the district court in Liberty County, where the case was tried, ended by operation of law on the 26th day of October, 1940, and the court was in vacation thereafter until and including October 30th. Revised Statutes Article 199, Section 75. The transcript was filed in the Court of Civil Appeals on the 27th day of December, 1940.

If the judgment was rendered as late as the last day of the September term of said court — that is, on October 26th — the transcript was not filed within the sixty-day period allowed by law (Revised Statutes Article 1839, as amended in 1939), and the court properly dismissed the appeal.

If the judge attempted to render the judgment on October 30th, as recited therein, the same was invalid and is not binding because the court was then in vacation, and was without authority to render judgment. 3 Tex.Jur. 429; Lyons-Thomas Hardware Co. v. Perry Stove Mfg. Co., 88 Tex. 468, 27 S.W. 100; Sinclair Ref. Co. v. McElree, Tex.Civ.App., 52 S.W.2d 679. An appeal will not lie from a purported judgment rendered in vacation, except where specifically authorized by statute. 3 Tex.Jur. 128; Ex parte Reeves, 100 Tex. 617, 103 S.W. 478, 481; Pittman v. Byars, 100 Tex. 518, 101 S.W. 789; American National Ins. Co. v. Valley Reservoir & Canal Co., Tex.Civ.App., 209 S.W. 438. In view of the positive recitations of the judgment that the case went to trial in September, 1940, "at a regular term of said court," and that final judgment was rendered "at the same term of court," and the further fact that...

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2 cases
  • Consolidated Furniture Co. v. Kelly
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • June 7, 1962
    ...jurisdiction of the case since the time for preparing the appeal begins to run from the date of the nunc pro tunc order. Murphy v. Boyt, 140 Tex. 382, 168 S.W.2d 631; Panhandle Construction Company v. Lindsey, 123 Tex. 613, 72 S.W.2d 1068; Sigler v. Realty Bond and Mortgage Co., 135 Tex. 76......
  • Pinkston v. Ogden, 4433.
    • United States
    • Court of Appeals of Texas
    • November 8, 1945
    ...special term, in fact, the Supreme Court has held that no such power exists. Ex parte Reeves, 100 Tex. 617, 103 S.W. 478; Murphy v. Boyt, 140 Tex. 382, 168 S.W.2d 631. Article 5, Section 29 of the Constitution, Vernon's Ann.St., provides for the terms of the county court. However, we shall ......

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