Hazel Corn v. Martin Weiner, M.D. ( 1991 )

cv1-227 IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-91-227-CV





HAZEL CORN,

APPELLANT

vs.





MARTIN WEINER, M.D.,

APPELLEE

FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT

NO. 90-PI-0014, HONORABLE CHARLES R. RAMSAY, JUDGE

PER CURIAM

Appellant Hazel Corn seeks to appeal from a summary judgment of the district court of Caldwell County. We will dismiss the appeal for want of jurisdiction.

On January 24, 1991, the district court rendered two facially contradictory orders: a summary judgment in favor of appellee Martin Weiner, M.D., and an order striking Corn's pleadings and dismissing her suit against Weiner. Tex. R. Civ. P. Ann. 329(b)(a) (Supp. 1991) required Corn to file a motion for new trial on or before February 25, 1991. See Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696 (Tex. 1986) (motion to reinstate has same effect as motion for new trial). On February 27, 1991, Corn, however, filed her motion for new trial and a motion to reinstate cause and set aside order for sanctions. The record does not indicate whether Corn mailed either motion to the district clerk on or before February 25, thereby enlarging the time to file pursuant to Tex. R. Civ. P. Ann. 5 (Supp. 1991).

In the absence of a timely motion, Tex. R. App. P. Ann. 41(a) (Supp. 1991) required Corn to perfect an appeal on or before February 25, 1991. A motion for extension of time to perfect appeal would have been due in this Court on or before March 12, 1991. Tex. R. App. P. Ann. 41(a)(2) (Supp. 1991). Apparently assuming that the motion for new trial was timely, Corn sent her appeal bond to the district clerk of Caldwell County on April 26 and, on June 14, filed her motion for extension of time to file cost bond in this Court. ⁽¹⁾ The district clerk filed the appeal bond on April 30; this Court granted the motion for extension on June 26, 1991.

Our review of the transcript filed in this cause shows, however, that this Court does not have jurisdiction over the appeal. Because Corn's motion for new trial was untimely, her appeal bond and motion for extension of time to file cost bond were also untimely. Farrow v. Bramble, 663 S.W.2d 893, 895 (Tex. App. 1983, no writ); St. Paul Ins. Co. v. Rahn, 586 S.W.2d 701, 703 (Tex. Civ. App. 1979, no writ); see Thomas v. Davis, 553 S.W.2d 624 (Tex. 1977). The timely filing of a bond, cash deposit, or affidavit in lieu thereof is jurisdictional. Davis v. Massey, 561 S.W.2d 799 (Tex. 1978). Because Corn filed her cost bond beyond the specified time, this Court lacks jurisdiction over the appeal. Duke v. Lloyd, 584 S.W.2d 742 (Tex. Civ. App. 1979, no writ).

Even if Corn had filed her motion for new trial timely and the appeal bond were due on April 25, this Court was without jurisdiction to consider the motion for extension of time to file cost bond. Rule 41(a)(2) provides that both the cost bond and a motion for extension of time must be filed "not later than fifteen days after the last day allowed." See B. D. Click Co., Inc. v. Safari Drilling Corp., 638 S.W.2d 860 (Tex. 1982). The motion for extension was due to be filed on or before May 10, 1991, but was not filed until June 14. Accordingly, this Court was without jurisdiction to grant an extension of time within which to file the cost bond.

The appeal is dismissed for want of jurisdiction.

[Before Chief Justice Carroll, Justices Jones and B. A. Smith]

Dismissed for Want of Jurisdiction

Filed: July 17, 1991

[Do Not Publish]

1. The motion does not set out the date of the judgment, the date of the filing of the motion for new trial, or the deadline for filing the cost bond. See Tex. R. App. P. Ann. 73 (Supp. 1991). The motion does state that the bond was obtained on April 26 and "was sent off immediately by Federal Express or Express Mail, with expected delivery no later than April 29, 1991 . . . ."