Hector Estrada v. Aetna Casualty and Surety Company ( 1993 )

Estrada v. Aetna Casualty & Surety Co. IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-93-232-CV





HECTOR ESTRADA,

APPELLANT

vs.





AETNA CASUALTY AND SURETY COMPANY,

APPELLEE

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 340TH JUDICIAL DISTRICT

NO. CV-91-1501-C, HONORABLE DICK ALCALA, JUDGE PRESIDING

PER CURIAM

The district court signed an amended judgment on February 10, 1993, during the period of its plenary power. Appellant Hector Estrada filed his premature affidavit of inability to pay the costs of appeal on February 5, 1993, but the certificate of service does not reflect service on the court reporter. See Tex. R. App. P. 40(a)(3)(B), 58. Appellant filed a motion for new trial on December 8, 1992, directed towards the district court's earlier judgment of November 9, 1992, and the motion was overruled by operation of law on January 23, 1993. See Tex. R. Civ. P. 329b(c). Appellant tendered the transcript for filing on May 14, 1993, perhaps erroneously believing that the overruled motion for new trial had extended the appellate timetables. See A.G. Solar & Co. v. Nordyke, 744 S.W.2d 646, 647-48 (Tex. App.--Dallas 1988, no writ). The transcript was due on or before April 12, 1993. See Tex. R. App. P. 54(a).

Appellant has filed a motion to dismiss because the transcript was not timely tendered. We cannot act on appellant's motion, however, because we conclude that the affidavit was ineffective. Appellant is not entitled to prosecute the appeal without paying the costs or giving security therefor, and his failure to do either deprives the Court of jurisdiction in this cause. Tex. R. App. P. 40(a)(3)(B). Appellant's motion to dismiss is dismissed for want of jurisdiction.

The appeal is dismissed for want of jurisdiction sua sponte.

[Before Chief Justice Carroll, Justices Aboussie and Jones]

Dismissed for Want of Jurisdiction

Filed: June 30, 1993

[Do Not Publish]