Randall Riggle and Joellyn Riggle v. Roger Wheeler and Charlotte Ison ( 2001 )

NUMBER 13-00-270-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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RANDALL RIGGLE AND JOELLYN RIGGLE, Appellants,

v.

ROGER WHEELER AND CHARLOTTE ISON, Appellees.

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On appeal from the County Court at Law of

San Patricio County, Texas.

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O P I N I O N

Before Justices Hinojosa, Yañez, and Castillo

Opinion by Justice Yañez

Appellants, Joellyn and Randall Riggle, appeal a county court order dismissing the appeal of a justice court judgment for lack of jurisdiction. We affirm.

A San Patricio County justice court rendered judgment in favor of appellees, Roger Wheeler and Charlotte Ison. Appellants subsequently filed a notice of appeal with the San Patricio County Court. The county court dismissed the appeal for lack of jurisdiction based on appellees' failure to timely file an affidavit of inability to pay in lieu of an appellate bond. See Tex. R. Civ. P. 572.

Under the Texas Rules of Civil Procedure, when filing an affidavit in lieu of an appellate bond, the affidavit must be filed within five days of the judgment being signed in order to perfect the appeal from the justice court to the county court. Id. Here, the justice court signed the judgment on June 22, 1999. The deadline for filing the affidavit was June 29, 1999. Tex. R. Civ. P. 4 (providing that Saturdays, Sundays, and legal holidays are not counted in calculating time periods of five days or less). However, the record shows that appellants mailed the affidavits on July 2. A document is considered filed with the county clerk on the date on which it was postmarked. Tex. R. Civ. P. 5. Appellant's appeal was not properly perfected in accordance with the Texas Rules of Civil Procedure, and the trial court correctly dismissed it for lack of jurisdiction. Headstream v. Magnum, 129 S.W.2d 1155, 1156 (Tex. Civ. App.-Amarillo 1939, no writ). We overrule appellants's sole issue.

We AFFIRM the ruling of the trial court.

LINDA REYNA YAÑEZ

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

12th day of July, 2001.