On Motion for Rehearing.
Appellant concedes that no written agreement was made by the parties postponing decision on the motion for new trial as required by Sub. (j) Rule 330, T.R.C.P., although he states that an oral agreement was made which was confirmed by a telegram dated October 5, 1948, from appellee’s attorney to appellant’s attorney, reading: “Bowman hearing for Octobeer 14th satisfactory.”
On October 5 the motion had been overruled -by operation of law and the telegram, even if constituting an agreement under the Rule, was without legal effect. Jones v. Campbell, supra, cited in original opinion.
Appellant filed no motion under Rule 386, T.R.C.P., showing good cause why his record could not have been timely filed. Compliance with this rule is necessary to invoke exercise of our discretion as to whether records may be filed tardily. Greer v. Poulter, Tex.Civ.App., Ft. Worth, 189 S.W.2d 883, Writ Ref. W.M. The case of J. D. McCollom Lumber Co. v. Whitfield, Tex.Civ.App., Austin, 53 S.W.2d 77, 78, cited by appellant, was decided before adoption of the present rules of civil procedure and does not control.
If dismissal of this appeal were discretionary with us, the motion to dismiss would be denied. We believe we have no discretion and therefore overrule the motion for rehearing.
Overruled.