Texas Employers' Insurance Association v. Martin
| Decision Date | 28 June 1961 |
| Docket Number | No. A-8112,A-8112 |
| Parties | TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Petitioner, v. Ernest MARTIN, Respondent. |
| Court | Texas Supreme Court |
Edwards, Belk, Hunter & Kerr, El Paso, for petitioner.
Joe A. Morgan, Ernest Guinn, El Paso, for respondent.
Petitioner's motion for judgment on the verdict was granted by the trial court. The Court of Civil Appeals reversed and remanded with instructions to render judgment for respondent. 339 S.W.2d 413. Petitioner contends that the appeal bond was not filed within thirty days after the overruling of respondent's motion for new trial as required by Rule 356(a), Texas Rules of Civil Procedure. We think the point is well taken, and the appeal will accordingly be dismissed.
The sequence of events, all of which occurred in 1959, is as follows:
April 23 Judgment of trial court rendered, signed and entered.
May 1 Respondent's motion for new trial filed.
May 19 Respondent's first amended motion for new trial filed.
July 15 Joint request of parties for extension of time filed.
July 16 Order overruling motion for new trial entered.
August 12 Respondent's appeal bond filed.
Subdivision 3 of Rule 329-b, as it existed in 1959, provided that 'all motions and amended motions for new trial must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, unless by written agreement of the parties in the case, the decision of the motion is postponed to a later date.' The forty-five day period in the present case ended on July 3rd, and our question is whether the joint motion filed twelve days later gave the trial court power to consider and act on the motion for new trial after the expiration of such period. This instrument, which is signed by the attorneys for both parties, is in the form of a 'request that the time for hearing on (respondent's) motion for new trial be extended to July 25, 1959.' The date it was signed is not disclosed by the record, but we will take it for granted that both attorneys executed the same within forty-five days after the amended motion for new trial was filed. It will also be assumed that the wording of the instrument is in substantial compliance with the provisions of Rule 329-b quoted above, although there is some doubt as to whether an agreement which merely postpones the hearing of a motion for new trial can be given that effect.
Respondent's amended motion for new trial was overruled by operation of law on July 3, 1959, unless the time for acting on same was...
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