Puckett v. Frizzell
| Decision Date | 20 April 1966 |
| Docket Number | No. A--11204,A--11204 |
| Citation | 402 S.W.2d 148 |
| Parties | Homer PUCKETT et ux., Petitioners, v. W. A. FRIZZELL, Respondent. |
| Court | Texas Supreme Court |
Pope & Heitler, Tyler, for petitioners.
Ben Goodwin, Tyler, for respondent.
The only question before us is whether the Court of Civil Appeals sitting at Tyler correctly dismissed the appeal in this case. That court, with one judge dissenting, held that the appeal bond had not been filed in time in the trial court and that the record had not been filed in time in the Court of Civil Appeals. 396 S.W.2d 245. We hold that the appeal should not have been dismissed, and the cause will be returned to the Court of Civil Appeals for a consideration of the merits of the case.
The judgment of the trial court contained a notice of appeal. Thereafter a motion for new trial was filed. It was overruled, and no additional notice of appeal was given. The appellant put up a cash bond. The cash bond, the transcript and statement of facts were filed in time if the time for filing began to run from the date of the overruling of the motion for new trial. They were not filed in time if the time began to run from the date of the judgment which contained the notice of appeal.
There are five of our Rules of Civil Procedure which are involved. As applicable here, they are as follows, with emphasis being added by us:
'(a) An appeal * * * may be taken by notice of appeal (1) in open court, noted on the docket Or embodied in the judgment, order overruling motion for new trial, or other minute of the court, or (2) filed with the clerk; such notice to be given or filed within ten days after the judgment or order overruling motion for new trial is rendered.'
'No motion for new trial or appeal bond or affidavit in lieu thereof or notice of appeal shall be held ineffective because prematurely filed; but every such motion shall be deemed to have been filed on the date of but subsequent to the rendition of the judgment the motion assails, And every such appeal bond or affidavit or notice of appeal shall be deemed to have been filed on the date of but subsequent to the rendition of the judgment appealed from or from the date of the such a motion is filed.' such a mation is filed.'
'The appeal is perfected when the notice of appeal is given and the bond or affidavit in lieu thereof has been filed * * *.'
'In appeal or writ of error the appellant shall file the transcript and statement of facts with the clerk of the Court of Civil Appeals Within sixty days from the rendition of the final judgment Or order overruling motion for new trial * * *.'
Rule 386 continues to provide for extensions of time upon good cause being shown.
The pertinent time table in this case is as follows:
Nov. 13, judgment entered containing notice of appeal.
Nov. 20, motion for new trial filed.
Dec. 17, motion for new trial overruled (no further notice of appeal given).
Jan. 14, cash put up in lieu of appeal bond (within 30 days from overruling of motion for new trial, but not within 30 days of the original judgment).
Feb. 25, the Court of Civil Appeals granted appellant an additional 20 days within which to file the record.
Mar. 8, (within that 20 days) the record was filed in the Court of Civil Appeals.
Oct. 21, the Court of Civil Appeals dismissed the appeal for want of jurisdiction because 'the appeal bond and the record were not timely filed.' The rules cited were 356 and 386, set out above.
The reasoning of the Court of Civil Appeals was: an appeal is perfected when (and only when) (1) notice of appeal is given, and (2) bond, or cash in lieu of bond, is filed in time. The only notice of appeal was given in the judgment of November 13. The cash in lieu of the bond was filed on January 14, more than 30 days from the giving of the notice of appeal on November 13; so the Court of Civil Appeals held that the cash in lieu of bond was put up too late; and the appeal was not perfected in time. We disagree. Rule 356 says the bond, or cash in lieu thereof, shall be filed within 30 days of the judgment Or order overruling the motion for new trial. It was filed within 30 days of the order overruling the motion for new trial.
The Court of Civil Appeals reasoned that if the appellant had given an additional or second notice of appeal after the overruling of his motion for new trial, he would have been saved. The concurring justice was of the view that there must be a notice of appeal after the overruling of the motion for new trial, and that the notice of appeal given in the judgment cannot serve the dual function of (1) a notice of appeal from the judgment and (2) a notice of appeal given when the motion for new trial is overruled.
We disagree with both of these positions. The rules provide for a notice of appeal, and Rule 353 provides that the notice may be embodied in the judgment. It was so done in this case. There is no requirement of a second notice of appeal upon the overruling of the motion for new trial. 4 McDonald, Texas Civil Practice 1509, § 18.31. The appeal is from the judgment, not from the order overruling the motion for new trial. Neely v. Tarrant County, 132 Tex. 357, 124 S.W.2d 101 (1939). This Court there said:
The holding quoted above was followed in City of Corpus Christi v. Gregg, 267 S.W.2d 478 (1954, no writ), by the Court of Civil Appeals sitting at San Antonio. The Gregg opinion was cited in the court's opinion and in the dissenting opinion in the case at bar. The holding in that case was that the time for filing the record began to run from the time the motion for new trial was overruled. The particular point before us in this case was not before the San Antonio Court of Civil Appeals, because in that case there was a notice of appeal in the judgment and also a notice of appeal in the order overruling the motion for new trial. The peculiarities in the Corpus Christi-Gregg case were (1) under the opinion of the Court of Civil Appeals, the city did not have to file a motion for new trial because the judgment was against it notwithstanding the verdict, and (2) the city, as a public body, did not have to file a bond. It was contended by the appellee, and it was the view of the dissenting justice, that since the city did not have to file a motion for new trial and did not have to file a bond, the appeal was perfected immediately upon the giving of the notice of appeal in the judgment. It was argued that at that moment, the jurisdiction of the case shifted to the Court of Civil Appeals. That being so, the argument continued, the record must have been filed within 60 days from the date of the judgment. The Court of Civil Appeals held otherwise: the city had the right to file the motion for new trial, and the time for filing the record began from the overruling of the motion for new trial. Apparently because of the uniqueness of the procedural problem brought about by the fact that the city was not required to file a bond, the court said that the appeal was not immediately perfected by the first notice of appeal contained in the judgment (so as to divest the trial court of further jurisdiction), but that the second notice of appeal given in the order overruling the motion for new trial superseded the first motion for new trial. As stated, the holding was that the time ran from the order overruling the motion for new trial.
The San Antonio Court of Civil Appeals later wrote an opinion on the merits in City of Corpus Christi v....
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...n.r.e.); 4 R. McDonald, Texas Civil Practice § 17.19 (1971). Regarding motions for new trial, the Texas Supreme Court in Puckett v. Frizzell, 402 S.W.2d 148 (Tex.1966) noted that the appeal is from the judgment, not from the order overruling the motion for new trial. In that case, decided u......
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...parties must appeal from judgments, not from orders overruling their post-trial challenges to those judgments. See Puckett v. Frizzell, 402 S.W.2d 148, 151 (Tex. 1966). ...
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...appellant invokes the jurisdiction of the court of appeals when he files his appeal bond or notice of appeal. Rule 363; Puckett v. Frizzell, 402 S.W.2d 148 (Tex.1966). However, a statement of facts, though no longer jurisdictional, is necessary for the appellate court to review any points o......