Drawe v. McGuffin , 1961 Tex. App. LEXIS 2476 ( 1961 )

355 S.W.2d 738 (1961)

W. H. DRAWE, Independent Executor of the Estate of H. C. Drawe, Deceased, Appellant,
v.
W. H. McGUFFIN, Appellee.

No. 13881.

Court of Civil Appeals of Texas, San Antonio.

March 21, 1961.

Lon D. Herbert, Alice, for appellant.

Lloyd, Lloyd & Dean, Alice, for appellee.

POPE, Justice.

Plaintiff filed suit upon a promissory note, and on April 11, 1960, it was dismissed for non-prosecution. On April 28, seventeen days later, plaintiff filed a motion to reinstate. On May 13, thirty-two days later, the court granted the motion. On October 14, after a trial on the merits, the court rendered a "take nothing" judgment, and plaintiff appealed.

A motion to reinstate is in the nature of a motion for new trial. Love v. State Bank & Trust Co., 126 Tex. 591, 90 S.W.2d 819. When one files a motion for new trial after ten days have expired, it does not operate to extend the court's jurisdiction over the judgment for a period of more than thirty days from the date of the rendition of judgment. Rule 329b, § 5, Texas Rules of Civil Procedure; Cathcart v. Childers, Tex.Civ.App., 296 S.W.2d 340. Hence, the order of reinstatement on May 13 was made after the court had lost jurisdiction. It had no power to render a "take nothing" judgment. Since there was no timely appeal from the final order of dismissal on April 11, 1960, this Court has no jurisdiction.

The appeal is dismissed.