Opinion
No. 7120.
March 9, 1927.
Appeal from District Court, Dallas County; Louis Wilson, Judge.
Action between J. F. Bell and others and Gertrude Cobb. Judgment for the latter, and the former appeal. On motion to dismiss appeal. Motion overruled.
Burgess, Burgess, Chrestman Brundidge, of Dallas, for the motion.
Lee R. Stroud, of Dallas, opposed.
Appellee, plaintiff be low, has moved to dismiss appeal for want of jurisdiction, on the ground that the appeal bond was not filed within the time provided in section 31, of article 2092, R.S. of 1925, which article applies to the court in which the judgment was rendered.
The record shows: Judgment rendered November 7, 1925; defendants' motion for new trial filed November 10, 1925; motion overruled December 28, 1925; term of court ended January 2, 1926; appeal bond filed and approved January 12, 1926.
Appellee's contention is that, because the motion for new trial was not presented to the trial court within 30 days, nor acted upon within 45 days after date of its filing, as required by section 28 of article 2092, the trial court lost jurisdiction to pass upon it, and the order overruling it was a nullity. Therefore, it is urged, the appeal bond came too late, under section 31 of the article. This contention was expressly overruled by the Supreme Court in Nevitt v. Wilson, 285 S.W. 1079, wherein it was held that, where motion for new trial is filed within 10 days after judgment, as required by section 28 of the article, the trial court does not lose jurisdiction of the cause or of the motion by failure to act thereon within 45 days after filing of motion.
The motion is overruled.
Motion overruled.