Sweed, James L. v. Nye, Jay L.--Appeal from 384th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

JAMES L. SWEED,

Appellant,

v.

JAY L. NYE,

Appellee.

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No. 08-02-00206-CV

Appeal from the

384th District Court

of El Paso County, Texas

(TC# 98-2528)

O P I N I O N

James L. Sweed appealed from a judgment entered November 21, 2001. Motion for new trial was not filed until March 12, 2002. Notice of appeal, due December 21, 2001, was not filed until May 13.

On May 13, the Clerk of this Court informed appellant that his notice of appeal had been filed. However, appellant was also informed that the notice was not timely filed. Notice was given of our intent to dismiss the appeal for want of jurisdiction unless any party within ten days could show grounds for continuing the appeal.

On May 28, this Court received a letter from appellant explaining that his notice of appeal was timely filed approximately seventy-five days after the motion for new trial was denied by operation of law. We do not believe that this constitutes sufficient grounds for continuing the appeal.

Generally, notice of appeal in civil cases must be filed within thirty days after the judgment is signed. Tex. R. App. P. 26.1. The notice of appeal must be filed within ninety days after the judgment is signed if any party timely files a motion for new trial. Tex. R. App. P. 26.1(a)(1). Failure to perfect an appeal within the time allotted results in a failure to invoke this Court=s jurisdiction. See Tex. R. App. P. 25.1(a), (b). This Court, then, has authority to dismiss an appeal for want of jurisdiction. Tex. R. App. P. 42.3(a).

Here, appellant=s notice of appeal was not timely. Appellant=s motion for new trial was not timely filed. Appellant should have filed his motion for new trial within thirty days after the judgment was signed. Tex. R. Civ. P. 329b(a). However, appellant filed his motion several months later. Therefore, notice of appeal should have been filed within thirty days after the signing of the judgment. It was not; instead, it was filed several months later. Even if appellant had timely filed his motion for new trial, notice of appeal should have been filed in February. Yet, appellant did not file his notice until May.

Accordingly, we dismiss this appeal for want of jurisdiction.

SUSAN LARSEN, Justice

June 20, 2002

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

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