Texas Employers Ins. Ass'n v. Hudson Engineering Corp. , 245 S.W.2d 523 ( 1952 )

NORVELL, Justice.

Appellee Hudson Engineering Corporation has filed a motion to dismiss this appeal. Appellant, Texas Employers Insurance Association, filed its motion for new trial herein on May 19, 1951, which was prior to the rendition of judgment which took place on May 21, 1951. Rule 306a, Texas Rules of Civil Procedure. The motion was overruled by operation of law. Rule 330(j), R.C.P. The appeal bond was filed on July 19, 1951. The time (30 days) for filing the appeal bond is controlled by Rule 356, R.C.P. If the motion for new trial be considered overruled 30 days after the date the motion was filed, the appeal bond was filed too late and the appeal should be dismissed. However, if said motion was overruled by operation of law 30 days after date of judgment, then the appeal bond was filed in time.

This is a case involving a motion for new trial, hence Rule 306c, R.C.P., is applicable. This rule provides: “No motion for new trial or appeal bond or affidavit in lieu thereof shall be held ineffective because prematurely filed, but every such motion shall be deemed to have been filed on the date of but subsequent to the rendition of the judgment the motion assails; and every such appeal bond or affidavit shall be deemed to have been filed on the date of but subsequent to the rendition of the judgment appealed from or from the date of the overruling of motion for new trial, if such a motion is filed.”

The motion for new trial was overruled by operation of law 30 days after May 21, 1951, the date of judgment and the appeal bond was therefore filed in time. Appellee’s motion to dismiss the appeal is overruled.