I respectfully dissent from the majority opinion upon the motion to dismiss the appeal, believing that this court does not have jurisdiction to act upon the merits.
Though fully cognizant of the provisions that the Texas Rules of Civil Procedure be given a liberal construction, as' well as the principle of law that a record should be likewise construed in favor of the right of appeal, yet it is my opinion that, because of T.R.C.P. 5 and its provision that the courts may not enlarge the period for taking any action under the rules relating to new trials or motions for rehearing except as stated in the rules relating thereto or the period for taking appeals except as provided for by those rules, a strict construction should be given to the rules in the test of our jurisdiction through appellate steps taken thereunder.
I believe that the appellant filed his appeal bond two days late. I believe that the calculation as to time for the appeal bond should date from the day the original motion for new trial was filed, because that motion was unqualifiedly presented to the trial judge. I am of the opinion that the Legislature in its enactment of V.A.T.S., Article 2092, subd. 28, intended that there would be only one time of “presentment” of a motion for a new trial in so far as the calculation for the purposes *416of appeal would be concerned. I believe that the Supreme Court in its adoption of the provisions of said Article and section as they appear in T.R.C.P. 330(j) intended the same thing.
T.R.C.P. 330(j) reads in part as follows: “All motions and amended motions for new trials must be presented within thirty (30) days after the original motion or amended motion is filed and must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, * *
I believe the rule should be construed as though it actually read, “All motions and amended motions for new trials must be presented within thirty (30) days after the original motion is filed and once a motion for new trial is presented must be determined within not exceeding forty-five (45) days after the original or amended motion so presented is filed, * * *.” (Emphasis indicates words added to the rule as it reads.)
It is true that T.R.C.P. 330(k) provides that a motion for new trial may be amended by leave of the court at any time before it is acted upon so long as the amendment is filed within twenty days after the original motion was filed, and from this it appears clear that it is entirely proper for a movant to amend the motion for new trial which has already been presented and while it is under consideration by a trial court, upon the granting of leave to amend.
It has been held that where a movant files an amended motion for new trial he thereby abandons his original motion. Hill v. Reynolds Trust, Tex.Civ.App., Fort Worth, 1940, 137 S.W.2d 195; Walter v. Rowland, Tex.Civ.App., San Antonio, 1916, 189 S.W. 981, error refused. Unless the movant obtains leave to withdraw his amended motion and insists on the original, it has.been held that the original motion is not abandoned where in filing the amendment there is no intention to abandon but only to add additional grounds. Maryland Casualty Co. v. Duhon, Tex.Civ.App., Beaumont, 1931, 40 S.W.2d 198, error refused; 66 C.J.S., New Trial, § 145, p. 393.
In the present instance there is additional complication in that the trial court had the original motion under consideration after its presentation when he granted leave to the appellant to file his amended motion. Fie filed the amendment but did not present it to the court until the thirtieth day after he filed it. When he filed the amended motion did he by the act of filing the same render the original motion a nullity? Did this destroy the legal effect of the presentation already made of the prior motion? Did this destroy the efficacy of any evidence heard in support of the prior motion? Did this destroy all authority of the court to overrule or sustain the prior motion he had under consideration? I believe that he did not. I believe that he has by his act of filing the amended motion made a legal substitution of the amended motion for the original motion in the hands of the trial judge and that the evidence heard under the prior motion would still be proper of consideration by the trial judge if the ground upon which such evidence was heard was repeated in the amendment.
I believe that the first motion does not become a worthless legal document in the hands of the trial judge with nothing tendered him in substitution thereof, leaving him helpless to act upon any motion at all until such time as the movant chooses to present his amended motion to him. I believe that even though the amendment was filed with the clerk and not thereafter handed to the judge, its filing operated in law to place the amended motion in his hands in exchange for the original motion without any time interval and without any necessity of formal presentation. Suppose the- appellant had never presented the amended motion to the trial judge. Could it be said that time for appeal did not run from the date the original motion which was presented was filed? I believe not. Likewise I believe the time was running under the original presentation until the time of the second presentation and *417that the second presentation did not interrupt this time.
Judge Greenwood, in the case of Independent Life Ins. Co. of America v. Work, 1934, 124 Tex. 281, 77 S.W.2d 1036, indicated that the evident purpose of the rules of law in question is to make judgments final thirty (30) days after they are rendered, which purpose may be defeated only if the complaining party avails himself of the procedure upon which appeals may be founded, delaying the finality of judgments only by a strict compliance with the rules of law governing such procedure. He further indicated that the purpose of these rules of law was to give the trial judge a reasonable opportunity to consider the merits of a complainant’s case and at the same time to expedite the progress of litigation and prevent unwarrantable and undue delay, and to hasten the day of judgment finality though with ample opportunity afforded a losing party to present his legal reasons why the judgment against him should not stand, and to preserve his right to present the same reasons on appeal if appeal is necessary. I believe that my opinion is in accord with the reasoning of Judge Greenwood in this case when I conclude that once a motion for new trial is presented the time for judgment finality or for steps to be taken to perfect an appeal is controlled by the date of the filing of that motion so presented, whether or not some later amendment might be permitted.
Judge Greenwood was considering the question of whether a second amended motion for new trial could be filed following the filing of a first amended motion. He reached the conclusion that the second amended motion could not be filed because the allowance of such would occasion a time computation dating from the day of its filing rather than from the day the first amended motion for new trial was filed, hence defeating the law’s intent that time computation should date from the day an amended motion was filed, if filed at all. In my view the same kind of -an extension of time would be involved if more than one presentment should be allowed if such presentment was of a subsequently filed motion, and that -the allowance • of an additional presentment would permit, a time computation dating from the day the subsequently presented motion was filed.
The operation of the applicable rules of law is twofold. Both the date of filing of motions for new trials and the act of presentment of such motions are controlling of the date of finality of judgments.. If there is no presentment, operation of law overrules a motion for new trial thirty (30) days after the day it is filed, but if there is-a timely presentment of such a motion, operation of law would not overrule it for forty-five (45) days after the day it is-filed. So if there is both a filing and presentment, the presentment controls in that it extends the time for judgment finality for fifteen (15) days additional. The consideration disregards the fact that the trial judge is authorized to act affirmatively upon such a motion at any time after presentment, but even when considered, he is given the additional fifteen (15) days within which he may act affirmatively upon the motion.
So if Judge Greenwood, in the Independent Life Ins. Co. of America v. Work case, was correct in saying that the filing of a second amended motion for new trial would be void and of no legal effect, and if I am correct in my understanding of the premise of his statement to be the resulting extension of time for judgment finality which time extension the law intended to prohibit, then I' am correct in my conclusion that the second presentment of the appellant’s motion for new trial (his amended motion) is void and of no legal effect in so far as any operation in time extension for judgment finality 19 concerned. This, despite my opinion that under authority of T. R. C. P. 330(k) a motion for new trial which has been presented and which is under consideration by a trial judge may, by his leave, be amended in his hands.
Furthermore, I believe that Judge Smed-ley meant exactly the same thing by his statement in the case of Dallas Storage & *418Warehouse Co. v. Taylor, 1934, 124 Tex. 315, 77 S.W.2d 1031, 1034, to-wit: “If a motion for new trial duly filed, whether original or amended, is presented within 30 days from the date of its filing, but is not determined within 45 days from the date of its filing, it is overruled by operation of law at the expiration of such 45-day period.”
Believing that appellant’s motion for new trial should be considered to have been overruled by operation of law forty-five (45) days from the day his original motion for new trial was filed because that motion was presented to the trial judge for his consideration and action, I would dismiss the appeal because the appeal bond was filed two days late.