Opinion
No. 05-03-01480-CV
Opinion issued October 18, 2004.
On Appeal from the County Court at Law No. 2, Collin County, Texas, Trial Court Cause No. 2-54-02.
Dismissed.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
MEMORANDUM OPINION
In five issues, Jerry Moody appeals the trial court's judgment in favor of Ag-Con Machinery Parts, Inc. In response, Ag-Con filed its brief and a motion to dismiss the appeal for want of jurisdiction. In its motion, Ag-Con contends this Court lacks jurisdiction because Moody's notice of appeal is untimely.
On June 4, 2003, the trial judge signed an "Order Sustaining Plaintiff's Objections and Final Judgment." Twenty-three days later, the judge drew a line through his signature and wrote "rescinded 6/27/03." On September 10, 2003, the judge signed a document entitled "Final Judgment." Moody filed a request for findings of fact and conclusions of law on September 17 and, on October 10, 2003, filed his notice of appeal. A judgment may not be vacated without a signed written order. Stephens v. Henry S. Miller Co., 667 S.W.2d 250, 252 (Tex.App.-Dallas 1984, writ dism'd by agr.); see also Faulkner v. Culver, 851 S.W.2d 187, 188 (Tex. 1993) (oral pronouncement and docket entry cannot substitute for written order). Absent a signed written order, striking through the date and signature of a previously entered judgment does not vacate the judgment. Stephens, 667 S.W.2d at 252.
In this case, the judge did not sign a written order vacating the June 4, 2003 judgment. Thus, the June 4 judgment is the final judgment in this case. The document entitled "Final Judgment" was signed September 10, well outside the trial court's thirty-day plenary power period. Moody's October 10 notice of appeal was untimely. See Tex.R.App.P. 26.1. Because the notice of appeal is untimely, we lack jurisdiction to address the merits of Moody's appeal. See Thompson v. Beyer, 91 S.W.3d 902, 905 (Tex.App.-Dallas 2002, no pet.).
Accordingly, we GRANT Ag-Con's motion, and we DISMISS this appeal.