Selman v. Ross

GANNON, Justice.

This controversy is essentially a child custody proceeding between the natural father of the minor, Ronnie Gene Ross— Raphael Ross — and the maternal grandparents of the child, Earl E. Selman and wife, Laura Mae Selman. The child’s mother is dead.

The maternal grandparents originated the proceedings in the Court of Domestic Relations of Harris County, Texas, from which the appeal comes to us. Their petition named Raphael Ross as the adversary-litigant, and the prayer is that the minor be declared neglected and dependent and that he “be finally given to petitioners in adoption * * * that his name be changed from Ronnie Gene Ross to Ronnie Gene Selman, and for all proper relief in the premises.” Defendant appeared and answered and “becoming actor,” prayed for the issuance of habeas corpus against plaintiffs, Earl E. Selman and wife, alleged to be unlawfully depriving the minor of his liberty, and that the minor be discharged from his “illegal confinement and *754restraint and that the custody” of the minor be awarded Raphael Ross.

After a preliminary hearing, an order was entered February 27, 1956 awarding the temporary care and custody of the child to the maternal grandparents, but the order appealed from is one signed and rendered May 30, 1956. It awarded custody of the minor to the father. For the purposes of this opinion, it may be considered that the order of May 30, 1956, finally disposes of all issues before the court on the pleadings of the parties.

If an original motion for a new trial was ever filed and when is not disclosed by the transcript. The transcript does show the filing on June 11, 1956, of an amended motion for a new trial. This was more than ten days after the order complained of by this appeal. The transcript shows that the amended motion was filed June 11, 1956, and further shows that this amended motion was heard, considered, and overruled on July 19, 1956.

The only notice of appeal appearing in the transcript is that given in open court on the 19th day of July, 1956, after the court on that day overruled the amended motion for a new trial. The appeal bond was filed August 6, 1956.

It is elementary that when our jurisdiction is invoked, the transcript must disclose affirmatively that we have such jurisdiction and that if it does not do so, our duty is to dismiss the appeal. 3-A Tex.Jur., Sec. 384.

It is now well settled that the filing of an original motion for new trial within a ten day period after the rendition of any judgment or order complained of is jurisdictional where the appeal is from an order overruling a motion for new trial. A later filing is a nullity. Starr County v. Guerra, Tex.Civ.App., 282 S.W.2d 304, albeit such late filing may very well serve as a reminder to the trial court of his power over his own minutes within thirty days after the rendition of any judgment or order. It is true the trial court retains jurisdiction for thirty days after the rendition of any judgment or order to set it aside, with or without the filing of any motion for a new trial, but this fact is not relevant to the requisite steps required to give us jurisdiction even in a non jury case such as the present, where no motion for a new trial is required for appeal, when the appeal is from the order overruling the motion for new trial as distinguished from the order complained of. Forrest v. Beynon, Tex.Civ.App., 179 S.W.2d 355; Starr County v. Guerra, Tex.Civ.App., 282 S.W.2d 304; First National Bank of Bryan v. Roberts, Tex.Civ.App., 280 S.W.2d 788; Rogers v. Potter, Tex.Civ.App., 281 S.W.2d 377. It is possible that an original motion for new trial was actually filed sometime before June 11, 1956. It is equally possible that this is not so, or that the original motion, if any, was itself filed as late as June 11, 1956. The facts in this respect, so far as the transcript shows, are speculative.

If the appeal be considered as one direct from the order of May 30, 1956, it is evident that notice of appeal and the filing of the appeal bond came too late. If the appeal be considered as one from the order overruling the amended motion for new trial, it is equally evident that there is no affirmative showing that an original motion was filed within the ten day period contemplated by the mandatory provisions of Rule 329-b, Subsection 1, Texas Rules of Civil Procedure, fixing the time allowance for the filing of original motions for new trial.

The transcript fails to disclose affirmatively that we have jurisdiction of the appeal.

Appeal dismissed.