Texas Emp. Ins. Ass'n. v. Foreman

Full title: TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellants, v. Ollie L. FOREMAN…

Court: Court of Civil Appeals of Texas, Texarkana

Date published: Aug 7, 1962

359 S.W.2d 671 (Tex. Civ. App. 1962)

Opinion

No. 7382.

August 7, 1962.

Appeal from the District Court, Cherokee County, J. W. Summers, J.

Donald Carroll, Ramey, Brelsford, Hull Flock, Tyler, for appellants.

Law Offices of Gordon R. Wellborn, Henderson, for appellee.

DAVIS, Justice.

A workmen's compensation case. Judgment in the above case was entered on February 18, 1961. Original motion for new trial was filed on February 27, 1961. An amended motion for new trial was filed on Mary 18, 1961. Assuming that the amended motion for new trial was filed on March 18, 1961, it had to be acted upon within 45 days thereafter. The 45 days ended on May 2, 1961. A hearing was had on the amended motion for new trial on April 29, 1961. On May 12, 1961, the following written instrument (omitting caption and signatures) was filed:

"The parties to this cause, through their authorized counsel of record, hereby, on this the 29th day of April, 1961, extend the time for the court to

pass upon the defendant's amended motion for new trial through the 12th day of May, 1961."

On May 12, 1961, the court entered an order overruling the amended motion for new trial. The order was a nullity. Under Rule 329b, Texas Rules of Civil Procedure, a motion for new trial, or an amended motion for new trial must be acted upon by the trial court within 45 days from the date the same is filed; otherwise, it is overruled by operation of law, " unless by one or more successive written agreements of the parties in the case filed with the clerk of the court the decision of the motion is postponed to a day certain specifically set out in any such agreement. * * *" (emphasis added) The foregoing written instrument, if it is an agreement, was not "filed" with the clerk of the court prior to the end of the 45 day period. Unless such agreement is filed with the clerk during the 45 day period, it can not be considered because the motion or amended motion is overruled as a matter of law on the 45th day. Longview Transit Company v. Ferchill, Tex.Civ.App., 312 S.W.2d 407, n. w. h.

The amended motion in the case being overruled by operation of law on May 2, 1961, the appeal bond would have had to be filed on or before June 1, 1961. The appeal bond was filed on June 10, 1961. It was filed too late.

The appeal is dismissed.