Opinion
No. 13865.
June 14, 1961.
Appeal from the 36th District Court, San Patricio County, John H. Miller, J.
John H. Flinn, Dist. Atty., Joseph C. Ternus, County, Atty., Sinton, James M. Rowe, Ingleside, for appellant.
Victor W. Bouldin, Vinson, Elkins, Weems Searls, Houston, for appellees.
This is an attempted appeal from a judgment of the District Court of San Patricio County in a quo warranto proceeding, wherein the court granted defendants' motion for a summary judgment and decreed that plaintiff take nothing, to which judgment the plaintiff excepted and gave notice of appeal.
The suit was originally filed by James M. Rowe as a citizen and taxpayer of certain annexed territory to the City of Ingleside, Texas. The State of Texas was brought into the case as a plaintiff by the District and County Attorneys of San Patricio County. James M. Rowe represented himself and did not employ counsel.
The judgment was rendered on March 24, 1961. The record was not tendered here for filing within twenty days after the rendition of judgment, as is required by Rule 384, Texas Rules of Civil Procedure, in quo warranto proceedings, nor was a motion for an enlargement of time filed in this Court within twenty-five days after the rendition of judgment, as is allowed by Rule 384, supra. The record was inadvertently filed in this Court on May 22, 1961, some fifty-nine days after the date of judgment.
Rule 5, Texas Rules of Civil Procedure, provides, in effect, that this Court may not enlarge the time for taking an appeal to this Court in quo warranto proceedings except as is provided in Rule 384, supra. These provisions have been held to be mandatory and jurisdictional. Davis v. State ex rel. Incorporated Town of Anthony, Tex.Civ.App., 298 S.W.2d 219; Wortham Independent School District v. State ex rel. Fairfield Consolidated Independent School District, Tex.Civ.App., 253 S.W.2d 495; Mathis Independent School District v. Odem Independent School District, Tex.Civ.App., 222 S.W.2d 270; State ex rel. Crawford v. Wagner, Tex.Civ.App., 203 S.W.2d 795.
Accordingly, the appeal is dismissed at the cost of appellant.