ON MOTION FOR REHEARING
By an earlier opinion we dismissed this cause of action because it appeared from the record before us at that time that appellant’s motion for new trial had been overruled by operation of law before the court by its written order overruled same on February 9, 1973, and consequently appellant’s appeal bond was not timely filed and therefore this court was without jurisdiction.
Appellant has filed a motion for rehearing accompanied by affidavit proof that the letters of agreement between the parties to extend the time until February 16, 1973, for the trial court to act upon appellant’s motion for new trial were deposited in the mail on January 24, 1973, which date was the day before the deadline for filing the same and was received by the Clerk of the District Court of Cherokee County on January 26, 1973, which date was well within the ten (10) days afforded by Rule 5 of the Texas Rules of Civil Procedure. The affidavit proof on file herein further shows that the envelope was properly addressed, stamped and was deposited in the United States (first class) Mail. It is also shown that the District Court had disposed of the envelope in which the letter agreements were received and therefore a postmark cannot be ascertained.
Appellant has shown by competent proof that the letters of agreement were mailed in accordance with Rule 5 of the Texas Rules of Civil Procedure and therefore were timely filed. Gaskin v. Perritt, 472 S.W.2d 211 (Tex.Civ.App., Texarkana, 1971, n. w. h. ).
The record now before us does affirmatively show the jurisdiction of this court has been invoked. Therefore, the previous order of this court of May 3, 1973, dismissing this appeal is set aside and the Clerk is ordered to place this cause upon the docket of this Court.