Neuhoff Bros., Packers v. Acosta
| Decision Date | 15 July 1959 |
| Docket Number | No. A-7182,A-7182 |
| Citation | 160 Tex. 124,327 S.W.2d 434 |
| Parties | NEUHOFF BROS., PACKERS, Petitioner, v. Felipa H. ACOSTA et al., Respondents. |
| Court | Texas Supreme Court |
Lyne, Blanchette, Smith & Shelton, W. S. Barron, Jr., Dallas, for petitioner.
Mullinax, Wells & Morris, David R. Richards, Dallas, Robert G. Reeves, Tyler, for respondents.
The Court of Civil Appeals dismissed the attempted appeal of Neuhoff Bros., Packers, because an appeal bond was not timely filed. Neuhoff Bros., Packers v. Acosta, Tex., 319 S.W.2d 416.
In determining the correctness of this action it is necessary to construe that part of Rule 356, Texas Rules of Civil Procedure, which reads as follows:
'Whenever a bond for costs on appeal is required, the bond shall be filed with the Clerk within thirty days after rendition of judgment or order overruling motion for new trial.'
The controlling question may be stated as follows:
In determining the time for filing an appeal bond under the rule, may one litigant rely upon his opponent's action in filing a motion for new trial?
This suit was brought under the Fair Labor Standards Act of 1938, 29 U.S.C.A. §§ 201-219, by Felipa H. Acosta and numerous others as plaintiffs against Neuhoff Bros., Packers, as defendants. At various times during the pendency of the action, the trial judge dismissed some 115 plaintiffs from the suit, including Felipa H. Acosta, the first named plaintiff in the petition. The case thereafter proceeded to trial and was submitted to a jury upon a total of 279 special issues. The jury's findings were for the most part favorable to the defendant, but upon motion filed in accordance with the provisions of Rule 301, the trial court rendered judgment notwithstanding the finding of the jury on one or more special issues. The plaintiffs 1 filed a motion for new trial, asserting six grounds therefor, including the action of the court in dismissing numerous plaintiffs from the suit. However, when the defendant filed no appeal bond within 30 days after the date of rendition of judgment, plaintiffs decided to accept the judgment and requested leave of the court to withdraw their motion for new trial. 2 Such leave was granted by the court and the motion was withdrawn. An appeal bond was thereafter filed by petitioner. The date of the filing was more than 30 days after the date of rendition of judgment but within 30 days from the date of the order permitting plaintiffs to withdraw their motion for new trial.
In the interest of clarity, we set out the following table of pertinent dates, all of which occurred in 1957:
August 26,-Judgment rendered notwithstanding certain jury findings.
September 5,-Plaintiffs' motion for new trial filed.
October 4,-Plaintiffs' motion to withdraw motion for new trial filed.
October 4,-Defendant filed an appeal bond.
October 7,-The court rendered an order granting plaintiffs leave to withdraw motion for new trial.
October 7,-Date upon which defendants' appeal bond could be considered as filed if the date of the withdrawal of the motion can be properly considered as the date the time begins to run for the filing of an appeal bond. 3
The defendant, as petitioner here, contends that the pendency of any motion for new trial should operate to extend the time for filing an appeal bond. It is argued that until such motion is disposed of, no litigant knows whether an appeal will be necessary or not. However that may be, we are of the opinion that the question is not an open one with us, but that this Court's decision in Peurifoy v. Weibusch, 125 Tex. 207, 82 S.W.2d 624, 625, compels an affirmance of the judgment of the Court of Civil Appeals.
In the Peurifoy case the plaintiff, Weibusch, recovered judgment upon an instructed jury verdict against the defendant, Thomason, and the intervenor, Peurifoy. A nunc pro tunc judgment was entered on August 30, 1932, and this Court held that the right of appeal dated from the entry of such judgment. The various motions filed and steps taken by the parties prior to August 30, 1932, are immaterial to the point presently at issue. Both Peurifoy and Thomason filed appeal bonds on October 28, 1932.
As to Peurifoy, the opinion discloses that:
'After the entry of the judgment nunc pro tunc on August 30, 1932, Peurifoy took, within the time fixed by the statute, the several steps for the perfection of his appeal, namely, the filing of original and amended motions for new trial, the presentation of his amended motion to the court, and giving of notice of appeal in open court after the overruling of his motion and the filing of his appeal bond.' As to Thomason it was said that:
Peurifoy's appeal was held...
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In re M.T.R.
...168 (Tex. Comm'n App. 1927) ; Neuhoff Bros., Packers v. Acosta , 319 S.W.2d 416, 418 (Tex. Civ. App.—Dallas 1958), aff'd , 160 Tex. 124, 327 S.W.2d 434 (1959). We conclude the November 15, 2018 decree is final. Therefore, we have jurisdiction over this appeal. ANALYSIS Mother raises two iss......
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Oil Field Haulers Ass'n v. Railroad Commission
...benefit of another party's motion for new trial. See Angelina County v. McFarland, Tex.Sup., 374 S.W.2d 417, 421; Neuhoff Bros., Packers v. Acosta, 160 Tex. 124, 327 S.W.2d 434. 2. Does this Court have jurisdiction of the application filed by Haulers and of the points of error contained the......
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Dorbandt v. Bailey
...(Tex.Civ.App., Tyler, 1966, writ ref., n.r.e.); Angelina County v. McFarland, 374 S.W.2d 417 (Tex.Sup.1964); Neuhoff Bros. Packers v. Acosta, 160 Tex. 124, 327 S.W.2d 434 (1959); Peurifoy v. Wiebusch, 125 Tex. 207, 82 S.W.2d 624 (1935). Moreover, the record before us reflects that appellees......
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Perez v. Los Fresnos State Bank
...n.r.e.). Under the record, we are compelled to dismiss the appeal of Interstate for want of jurisdiction. Neuhoff Bros., Packers v. Acosta, 160 Tex. 124, 327 S.W.2d 434 (1959); Dorbandt v. Bailey, 481 S.W.2d 939 (Tex.Civ.App.--Tyler 1972, writ ref'd n.r.e.). Interstate's appeal is Even if w......