Opinion
No. 1837.
March 12, 1981. Rehearing Denied April 23, 1981.
Appeal from the 94th District Court, Nueces County, George Hamilton, J.
Allan L. Potter, Potter Potter, Corpus Christi, for appellant.
Andrew J. Lehrman, Sorrell, Anderson Sorrell, Corpus Christi, for appellee.
OPINION
Appellant, Dr. Jorge Schultze, seeks an order of this Court extending the time to file a cost bond pursuant to the amended version of Rule 356, T.R.C.P., effective January 1, 1981. The Court, having considered appellant's Motion for Late Appeal Cost Bond Filing, Amended Motion for Late Appeal Cost Bond Filing and Motion for Extension of Time to File the Statement of Facts, is of the opinion that the motions should be denied.
Judgment was signed on August 22, 1980. Appellant telephoned his attorney shortly before the judgment was entered and advised him that he was terminated. Counsel advised appellant shortly after the judgment that a Motion for New Trial should be filed to preserve his appellate rights. A Motion Pro Se was prepared by his attorney and a copy delivered to the appellant and his designated future attorney. The Motion Pro Se was filed on September 2, 1980 by appellant without a copy being forwarded to appellee or his attorney. This motion was overruled by operation of law on October 16, 1980. It was therefore incumbent upon appellant to file his cost bond with the district clerk's office no later than November 17, 1980. The cost bond was not filed until December 2, 1980, some fifteen days after the filing deadline had expired.
Appellant is required to file his cost bond within thirty days after the date of rendition of judgment or order overruling the motion for new trial. Rule 356, T.R.C.P. The requirement that the bond be filed within 30 days is mandatory and cannot be dispensed with or enlarged for any reason. Glidden Company v. Aetna Casualty Surety Company, 155 Tex. 591, 291 S.W.2d 315 (1956).
Appellant would have this Court apply the amended version of Rule 356, effective January 1, 1981, to the facts at bar. This case was tried and the motions filed before January 1. Therefore, the version of Rule 356 prior to January 1, 1981, will apply to appellant's Motion for Late Appeal Cost Bond Filing. See Sproles Motor Freight Line v. Long, 140 Tex. 494, 168 S.W.2d 642 (1943).
All motions for late appeal cost bond filing are hereby denied. The appeal is dismissed.