Duke v. Lloyd

584 S.W.2d 742 (1979)

Floyd F. DUKE et al., Appellants,
v.
Beatrice LLOYD et al., Appellees.

No. 6099.

Court of Civil Appeals of Texas, Waco.

July 26, 1979. Rehearing Denied August 16, 1979.

Kenyon Houchins, Houchins & Tasker, Houston, for appellants.

McGillivray Muse, Minor L. Morgan, Dallas, Jack Welch, Welch, Parsons & Stem, Marlin, for appellees.

ON MOTION FOR REHEARING

HALL, Justice.

Previously, on June 14, 1979, we overruled the motion of appellants William B. Duke, individually, and as Temporary Administrator of the Estate of Floyd F. Duke, Sr., Deceased, and Betty Jean Duke for extension of time to file the transcript and statement of facts. We overruled the motion on the holding that the record did not show a reasonable explanation for appellants' failure to timely file the transcript and statement of facts. Without a timely-filed transcript, we dismissed the appeal for want of jurisdiction.

On rehearing, we have decided that the record does set up a reasonable explanation for the needed extension. Nevertheless, the record shows that an appeal bond was not filed by appellant Betty Jean Duke; that neither an appeal bond nor notice of appeal was filed by William B. Duke as Temporary Administrator of the Estate of Floyd Duke, Sr., Deceased; and that the only appellant who perfected an appeal (by timely filing of an appeal bond) was William B. Duke, individually. Accordingly, we do not have jurisdiction of the appeals by Betty Jean Duke and by William B. Duke as Temporary Administrator. Rule 356, Vernon's Tex.Rules Civ.Proc.; Nelson v. State, 497 S.W.2d 538, 539 (Tex.Civ.App. —Waco 1973, no writ); Article 2276, Vernon's Tex.Civ.St.; V.A.T.S. Probate Code, § 29; Rule 354, Vernon's Tex.Rules Civ. Proc. Our judgment dated June 14, 1979, dismissing those two appeals was therefore correct; and the motion for rehearing as to those two appellants is overruled.

The motion for rehearing of appellant William B. Duke individually is granted; our opinion and judgment of June 14th overruling his motion for extension of time to file the transcript and statement of facts are set aside; appellant William B. Duke's motion for extension of time is granted; and the transcript, supplemental transcript, and statement of facts which are presently in custody of the clerk are ordered filed.