Puckett v. Frizzell , 1965 Tex. App. LEXIS 2313 ( 1965 )

MOORE, Justice

(dissenting).

I respectfully dissent. Appellant gave notice of appeal in the judgment dated November 13, 1964. Thereafter, he seasonably and timely filed his motion for new trial which was timely overruled by the court on December 17, 1964. After the court overruled the motion for new trial, appellant did not again give notice of appeal, but apparently relied upon the notice of appeal theretofore given in the judgment. A cash deposit in lieu of an appeal bond was made within 30 days after the order overruling the motion for new trial and the Transcript and Statement of Facts were filed in this court within 50 days thereafter.

If we compute the time from the judgment dated November 13, 1964, the period for filing the bond and record on appeal has expired and this court would not have jurisdiction. On the other hand, if we compute the time based on the date of the order overruling the motion for new trial on December 17, 1964, the period for the filing of the bond and record has not expired and the court would have jurisdiction.

The effect of the holding of the majority is to say that the appellant is compelled to give notice of appeal from or after the order overruling the motion for new trial, and that a failure to a second notice amounts to an abandonment of the motion for new trial. As a consequence, they hold that the time for the filing of the deposit in lieu of bond must be computed from the date of the judgment rather than the date of the order overruling the motion for new trial, and since the deposit was not made within 30 days after the judgment, the court is therefore without jurisdiction. I am not in accord with this conclusion.

It is generally stated that all doubts should be resolved in favor of an appellant’s right to appeal. City of Abilene v. American Surety Co. (Tex.Civ.App.), 73 S.W.2d 616.

Rule 353 of the Texas Rules of Civil Procedure provides as follows:

“(a) An appeal, when allowed by law, may be taken by notice of appeal (1) in open court, noted on the docket or embodied in the judgment, order overruling motion for new trial, or other minute of the court, or (2) filed with the clerk; such notice to be given or filed within ten days after the judgment or order overruling motion for new trial is rendered.”

Rule 363, T.R.C.P. provides that the appeal is perfected when the notice of appeal is given and the bond or affidavit in lieu thereof has been filed.

The jurisdictional question presented poses this question: Under Rule 353, above quoted, if a party gives notice of appeal within ten days after final judgment and thereafter files a motion for new trial, which is overruled, is it necessary to give any further notice of appeal? Judge Funderburk in Fitzgerald v. Lane, (Tex.Civ.App.) 126 S.W.2d 64, reversed on other grounds, 137 Tex. 514, 155 S.W.2d 602, answered the question as follows: “ * * * Although there may be some dicta to the contrary, it is our considered opinion that no additional notice of appeal under such circumstances is required. * * * ”

It seems to me that a fair interpretation of Rule 353 is that it means literally what it says, namely: That notice of appeal is to be given “within ten days after the judgment or (not and) order overruling motion for new trial is rendered.” (Emphasis, supplied.)

Regardless of the time when the notice of appeal is given, appellant is required to appeal from the judgment. There can be no appeal from the order overruling the motion for new trial. Neely v. Tarrant County, 132 Tex. 357, 124 S.W.2d 101; City of Corpus Christi v. Gregg (Tex.Civ.App.) 267 S.W.2d 478. If, therefore, the appeal is not from the order overruling the motion for new trial there would seem to be no necessity in again giving such notice after the order overruling the motion.

I therefore conclude that the failure to give notice of appeal after the order overruling the motion for new trial does not, as a matter of law, amount to an abandonment of the motion for new trial. Such failure, however, may in some cases be sufficient to show that the appellant has abandoned the assignments of error presented in the motion. City of Abilene v. American Surety Co., supra. But the question of whether or not the appellant has abandoned the assignments of error is not a jurisdictional question, but rather a question of the procedure to be followed after the court has assumed jurisdiction of the cause. Fitzgerald v. Lane, supra.

McDonald in his work on Texas Civil Practice, makes this observation: “The notice may be given both after the judgment and after the order on the motion, but if it is given promptly after judgment, it seems unnecessary to repeat it when the motion for new trial is overruled.” McDonald, Texas Civil Practice, paragraph 18.31, page 1508, citing Fitzgerald v. Lane, supra; City of Abilene v. American Surety Co., supra.

If a second notice of appeal is unnecessary, failure to give such notice cannot be construed as an abandonment of the motion. I would therefore hold that the time for the filing of the bond and record on appeal must be computed from the date of the order overruling the motion for new trial and not from the date of the judgment, and would thus hold that the appeal has been properly perfected.

If, however, by some stretch of the imagination, the Rules of Civil Procedure can be construed as requiring another notice of appeal after the order overruling the motion for new trial, the notice of appeal theretofore given in the judgment would then become a premature notice of appeal as provided in Rule 306c, T.R.C.P. The rule specifically provides that no notice of appeal shall be held to be ineffective because prematurely filed. It declares that every such notice of appeal shall be deemed to have been filed on the date of, but subsequent to, the rendition of the judgment appealed from or from the date of the order overruling the motion for new trial, “if such a motion is filed.” Thus, even though the rules be construed as requiring a notice of appeal after the order overruling the motion for new trial, appellants’ notice of appeal theretofore given in the judgment must be deemed to have been filed subsequent to the order overruling the motion. For this additional reason, I would therefore hold that the time for the filing of the bond and record on appeal must be computed from the date of the order overruling motion for new trial rather than the date of the judgment and that the court has jurisdiction of this cause.