Thacker v. Thacker
| Decision Date | 08 January 1973 |
| Docket Number | No. 8350,8350 |
| Citation | 490 S.W.2d 234 |
| Parties | Leslie THACKER, Appellant, v. Bernice THACKER et al., Appellees. |
| Court | Texas Court of Appeals |
Leslie Thacker, Houston, for appellant.
Robinson, Fotheringham & Simpson, A. J. Robinson, Amarillo, for appellees.
Appellant Leslie Thacker has attempted to appeal from a summary judgment adverse to her litigious position. Appellee Bernice Thacker filed a motion to dismiss the appeal for lack of appellate jurisdiction. The motion is premised on the grounds that appellant's notice of appeal and appeal bond were not filed timely. Appellant joined the issue. Both parties have filed briefs and the issue has been fully developed. The motion to dismiss is granted and the appeal is dismissed.
Bernice Thacker brought this suit against Aetna Life Insurance Company to recover the proceeds of a matured group life insurance policy in which she was the named beneficiary. Aetna, representing that an adverse claim to the policy proceeds had been made by Leslie Thacker, tendered the proceeds, requested that Leslie Thacker be impleaded and prayed that it be discharged. Leslie Thacker answered and filed a cross-action. Both Aetna and Bernice Thacker filed motions for summary judgment. On August 2, 1972, 1 the trial court entered its order setting a hearing on the motions for September 7. Leslie Thacker filed an answer to the motions, supported by an affidavit in which she stated that due to hospitalization scheduled for September 6, she '. . . cannot be present for this hearing.' No request was made for a continuance.
On the day previously set, the trial court conducted a hearing on the summary judgment motions and rendered its judgment, entered and filed on September 7, granting both motions. By letter dated September 11 and received by the district clerk on September 19 in an envelope bearing a Houston postmark of September 18, appellant requested to be informed of the result of the September 7 hearing. The letter contained this wording: 'Should the Plaintiff's Motion be granted in whole or in part, this constitutes Notice of Appeal.' The clerk's reply was received by appellant on September 20.
Appellant filed a motion for new trial on September 21. Subsequently, appellant presented to the court a pleading designated as a motion to arrest and reverse summary judgment. The trial court heard appellant's motions on October 4 and on the same day entered its order overruling both motions. Appellant filed a notice of appeal with the clerk on October 5, and the clerk received and filed the appeal bond on October 9.
By disposing of all parties and issues, the summary judgment was a final judgment and appealable. The first jurisdictional predicate to an appeal is the requirement of Rule 353 2 that notice of appeal must be given within ten days after judgment is rendered or motion for new trial is overruled. This requirement is mandatory and jurisdictional and if the notice of appeal is not timely filed, the appellate court acquires no jurisdiction over the appeal except to dismiss it. Howe v. Howe, 223 S.W.2d 944 (Tex.Civ.App.--Eastland 1949, writ ref'd).
In this non-jury proceeding, a motion for new trial was not required as a prerequisite to the right of appeal, Rule 324; nevertheless, a motion for new trial may be filed under authority of Rule 323. If the non-prerequisite new trial motion is filed, however, it must be filed within ten days after rendition of judgment to effectively extend the definitive time within which the notice of appeal is otherwise required to be filed. Park v. Essa Texas Corporation, 158 Tex. 269, 311 S.W.2d 228 (1958).
The new trial motion filed on September 21 was not filed within the ten days following the September 7 summary judgment and thus ineffective to alleviate the mandatory and jurisdictional requirement that the notice of appeal must have been given within ten days after the summary judgment was rendered. The tenth day following the date of judgment was September 17, but since that day was a Sunday, the time was extended to September 18. Rule 4. However, appellant's first notice of appeal was not filed with the clerk until September 19, one day late.
Appellant seeks to be excused for the late filing by certifying that (1) she received no notice of rendition of the September 7 judgment until she received the clerk's letter on September 20 in reply to her inquiry; (2) the first notice of appeal was mailed in Houston on September 16 in time to be postmarked on that day and timely filed under Rule 5; and then declaring that (3) the additional three days allowed by Rule 21a for mail service assured that the notice of appeal was timely filed; and (4) though the motion for new trial was not within ten days from the date...
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