Sharp v. Knowles

DUNAGAN, Chief Justice.

This is a suit by a contractor for balance claimed due under a home repair agreement. The suit was brought by Robert E. Knowles, d/b/a Longview Home Service, against Hollis Sharp and wife, Louise Sharp, in the District Court of Gregg County, Texas.

At the outset this Court is confronted with the question of whether it is disclosed by the transcript that the jurisdiction of this court is invoked.

The trial below was to a jury. Appellants-defendants filed motion for judgment. This record does not show an order of the court directly disposing of this motion. However, the judgment in the record shows that the court did render judgment against appellants and for the appellee. This appeal is directly from the judgment.

It appears from the judgment that the case went to trial on January 30, 1968. The last sentence in the judgment immediately above the Judge’s signature reads, “SIGNED AND ENTERED this 13 day of May 19.” We do not think that it would be seriously contended that this judgment was signed in the 19th year either B.C. or A.D., which would be long prior to the origin of this lawsuit. Therefore, we cannot determine from the record what year the judgment was actually signed. In the absence of the actual date of the signing of said judgment, the date of rendition appearing on its face must govern for appeal purposes. Heard v. Heard, 305 S.W.2d 231 (Tex.Civ.App., Galveston, 1957, writ ref.); Rule 306a, Texas Rules of Civil Procedure. The date of the filing of the judgment may not be taken as indicative of the date it was signed. Heard v. Heard, supra. Therefore, since January 30, 1968, is the only reliable date recited in the judgment, we are required to accept said date as the date of the rendition of said judgment and such is the date of the beginning of the period within which the various steps of an appeal must be taken as provided for in Rule 306a, T.R.C.P.

It is the well-established law of this State that appellate jurisdiction must affirmatively appear from the record, and if it does not do so, it is our duty to dismiss the appeal. 3 Tex.Jur.2d, p. 641, sec. 383; Needham v. Austin Electric Ry. Co., 59 Tex.Civ. 144, 127 S.W. 904 (1910, n. w. h.) ; Selman v. Ross, 302 S.W.2d 752 (Tex.Civ.App., Galveston, 1957, n. w. h.) ; Miller v. Esunas, 401 S.W.2d 150 (Tex.Civ.App., Tyler 1966, writ ref., n. r. e.); Dean v. Warren, 464 S.W.2d 672 (Tex.Civ.App., Tyler, 1971, n. w. h.).

Notice of appeal was filed May 20, 1971.

Affidavit of inability to pay cost of appeal was filed May 20, 1971.

Rule 353, T.R.C.P., requires that notice of appeal be filed within ten days after the judgment or order overruling motion for new trial is rendered.

Rule 356, T.R.C.P., requires that an affidavit in lieu of bond be filed not more than 20 days after the date of rendition of judgment or order overruling motion for new trial.

Neither the notice of appeal nor the affidavit in lieu of bond was filed within the time required; therefore, they came too late to give this court jurisdiction of this appeal. Becnel v. Becnel, 336 S.W.2d 221 (Tex.Civ.App., Texarkana, 1960, n. w. h.); Donald v. John Vinson, Inc., 344 S.W.2d 751 (Tex.Civ.App., Fort Worth, 1961, writ ref.) ; Spain v. Kurth, 163 S.W.2d 247 (Tex.Civ.App., Beaumont, 1942, n. w. h.); Greer v. Poulter, 189 S.W.2d 883 (Tex.Civ.App., Ft. Worth, 1945, ref. w. m.).

The transcript fails to disclose affirmatively that we have jurisdiction of the appeal.

Appeal dismissed.