The attempted appeal in this case is predicated on the filing of an appeal bond in the court below on September 2, 1939; the judgment was entered on May 18, 1939, motion for new trial was filed on May 30, 1939, and, without a written agreement to postpone hearing, the motion was not acted on by the trial court until August 14, 1939, one hundred and seven days after its filing.
The motion for rehearing having been filed, but not presented within thirty days after the date of its filing, and not determined within forty-five days, under subdivision 28 of article 2092, R.S., as amended by the 41st Legislature, 1930, 5th called session, p. 227, c. 70, § 1 (Vernon's Ann.Civ.St. art. 2092, subd. 28), it was overruled by operation of law at the expiration of such thirty days, which was June 29, 1939. Under article 2092, in order to perfect an appeal to, and invoke the jurisdiction of, the Court of Civil Appeals, the appeal bond should have been filed within thirty days after June 29, 1939. Solomon v. Harrison et al., Tex. Civ. App. 81 S.W.2d 164.
Accordingly, this court being without jurisdiction of the appeal, appellee's motion to affirm on certificate is overruled; the alternative motion to dismiss the appeal is sustained.
Appeal dismissed. *Page 920