Michael E. Cumbow v. Texas Guaranteed Student Loan Corporation ( 1994 )

Cumbow v. TGSLC IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-94-280-CV





MICHAEL E. CUMBOW,

APPELLANT

vs.





TEXAS GUARANTEED STUDENT LOAN CORPORATION,

APPELLEE

FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY

NO. 179,438, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING

PER CURIAM

Appellant Michael Cumbow tendered a transcript to this Court that contains neither an appealable judgment nor a perfecting instrument. Because these defects have not been remedied, we will dismiss the appeal for want of jurisdiction.

The transcript shows that appellee Texas Guaranteed Student Loan Corporation sued Cumbow on a note in 1988. The county court at law signed a default judgment against Cumbow on March 6, 1989, which resolved all claims the Corporation had against Cumbow. In 1994, Cumbow filed a petition against the Corporation in the same court, complaining that the Corporation had denied him proper notice of its suit and praying that the court dismiss the judgment against him. The transcript does not show that the county court at law ever rendered a judgment disposing of Cumbow's suit against the Corporation. Although the transcript contains an order reducing the cost bond on appeal to $65.00, no cost bond or other perfecting instrument appears.

The Clerk of this Court notified Cumbow that he would not file the transcript until Cumbow tendered a supplemental transcript containing an appealable judgment and a perfecting instrument. The supplemental transcript, due September 12, 1994, has not been tendered.

The judgment of March 6, 1989, appears final on its face, and the time to appeal it has passed. Tex. R. App. P. 41(a)(1), 45. While a bill of review can be brought to attack a judgment after the time for an appeal has expired, the bill of review must result in its own judgment. Kessler v. Kessler, 693 S.W.2d 522, 525 (Tex. App.--Corpus Christi 1985, writ ref'd n.r.e.); see Tex. R. Civ. P. 329b(f). Unless a final judgment has been rendered in Cumbow's suit against the Corporation, this Court has no appellate jurisdiction. Tex. Civ. Prac. & Rem. Code Ann. § 51.012 (West 1986); North E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966).

In addition, this Court has no jurisdiction over an appeal in the absence of a filed perfecting instrument. Davies v. Massey, 561 S.W.2d 799, 801 (Tex. 1978). Because Cumbow has provided this Court neither an appealable judgment nor a perfecting instrument, we dismiss the appeal for want of jurisdiction. Tex. R. App. P. 56(a), 60(a)(2).

Before Chief Justice Carroll, Justices Jones and Kidd;

Chief Justice Carroll Not Participating

Dismissed for Want of Jurisdiction

Filed: October 19, 1994

Do Not Publish