Opinion
No. 4807.
May 22, 1952.
Appeal from the District Court, Montgomery County, Ernest Coker, J.
Bonham, Stanley Campbell, Houston, Nat. H. Davis, Conroe, for appellants.
J. R. Liles, W. C. McClain, Conroe, Campbell Foreman, Livingston, for appellee.
This was a suit for the reformation of a Vendor's lien note executed by appellants, payable to the appellee. Upon a favorable jury finding, judgment was entered in favor of the appellee Pitts, reforming the Vendor's lien note. Judgment was entered on the 29th day of September, 1951. Appellants' motion for new trial was filed on the 25th day of October, 1951. Appellee has filed a motion to dismiss this appeal for the reason that appellants' motion for new trial was not filed within the time provided for by Rule 320, which was applicable to the trial court. Rule 324 makes a motion for a new trial a prerequisite to an appeal in any case tried by a jury where no motion for judgment non obstante veredicto or a motion on the verdict of the jury was filed by appellant. Neither of such motions were filed by the appellants in this case, and under the authority of Wagner v. Walenta, Tex.Civ.App., 225 S.W.2d 463 and the cases therein cited, including Rule 324, Texas Rules of Civil Procedure, appellee's motion to dismiss this appeal is granted.
The appeal is dismissed.