Jerry Foland, D/B/A Foland's Red Barn v. Tom Snyder ( 1994 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-94-332-CV





JERRY FOLAND, D/B/A FOLAND'S RED BARN,

APPELLANT

vs.





TOM SNYDER,

APPELLEE

FROM THE COUNTY COURT OF LLANO COUNTY

NO. 01433, HONORABLE J. HOWARD COLEMAN, JUDGE PRESIDING

PER CURIAM

Appellant Jerry Foland d/b/a Foland's Red Barn seeks to appeal from a judgment of the county court of Llano County rendered in favor of appellee Tom Snyder. On August 5, 1994, this Court granted Foland's first amended motion to extend time for filing and perfecting appeal. ⁽¹⁾ Because Foland has not tendered a transcript and shown that this Court has jurisdiction over the appeal, we will dismiss the appeal.

Based on the information contained in Foland's motion and first amended motion for an extension of time to perfect the appeal, the transcript was due in this Court no later than July 18. Tex. R. App. P. 54(a). A motion for extension of time to file the transcript was due by August 3. Tex. R. App. P. 54(c). To date, this Court has received neither a transcript nor a motion requesting an extension of time within which to file a transcript.

An appellate court may dismiss an appeal for the failure to file a transcript. Tex. R. App. P. 54(a); Western Credit Co. v. Olshan Enters., Inc., 714 S.W.2d 137, 138 (Tex. App.--Houston [1st Dist.] 1986, no writ). Furthermore, in the absence of a transcript, the record does not show that Foland properly perfected an appeal pursuant to Texas Rule of Appellate Procedure 54. ⁽²⁾ If he has not done so, this Court has not acquired jurisdiction over the appeal. Willis v. Texas Dept. of Corrections, 843 S.W.2d 953 (Tex. App.--Tyler 1992, no writ); Gonzalez v. Doctors Hosp.--East Loop, 814 S.W.2d 536, 537 (Tex. App.--Houston [1st Dist.] 1991, no writ); see Davies v. Massey, 561 S.w.2d 799, 801 (Tex. 1978) (filing a cost bond is necessary and jurisdictional step in taking appeal). Accordingly, we must dismiss the appeal. Davies, 561 S.W.2d at 801; Willis, 834 S.W.2d 953; Gonzalez, 814 S.W.2d at 537.

The appeal is dismissed.

Before Chief Justice Carroll, Justices Jones and Kidd;

Chief Justice Carroll Not Participating

Appeal Dismissed

Filed: October 12, 1994

Do Not Publish

1. ¹  Foland had previously filed a motion to extend time for filing and perfecting appeal which this Court dismissed on August 5.

2. ²  Foland's verified first amended motion states that the cost bond was filed on July 1. See Tex. R. App. 54(c). The copy of the appeal bond attached as an exhibit to Foland's motion, however, does not show the date the county clerk of Llano County filed the bond.