Jeannette Merrill v. Mark Merrill--Appeal from 261st District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-97-00436-CV
Jeannette Merrill, Appellant
v.
Mark Merrill, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. 96-03187, HONORABLE JOSEPH H. HART, JUDGE PRESIDING

PER CURIAM

Appellant Jeannette Merrill appeals from a judgment of the trial court granting a divorce to appellee Mark Merrill. On July 31, 1997, this Court received but did not file the single volume transcript in this cause. The Clerk of this Court informed appellant that the perfecting instrument, an affidavit of inability to pay, had been filed with the trial court fifteen days beyond the due date for perfecting this appeal. See former Tex. R. App. P. 41(a)(1). (1) Because the record did not contain evidence of a motion requesting an extension of time to perfect the appeal, this Court advised appellant that absent a timely filing of the affidavit, this cause would be dismissed for want of jurisdiction. Further, appellant was requested to show good cause for the appeal in this cause to continue. See former Tex. R. App. P. 60(a)(2).

On August 27, 1997, this Court received appellant's response which revealed that although counsel for appellant did not act with a callous disregard of the procedural requirements for timely perfection of an appeal before this Court, appellant failed to comply with the directives of her attorney and thereby forfeited her right to appeal the trial court's judgment.

Accordingly, because the appeal in this cause was not timely perfected, we dismiss the appeal for want of jurisdiction. All pending motions in this cause are also dismissed.

 

Before Chief Justice Carroll, Justices Jones and Kidd

Appeal Dismissed for Want of Jurisdiction

Filed: October 16, 1997

Do Not Publish

1. We note that although the Texas Rules of Appellate Procedure have been revised effective September 1, 1997, perfection of the appeal in this cause was due prior to the effective date and hence the former rules apply. Moreover, the revised rules provide that when a party is indigent, the appeal must be timely perfected by filing an affidavit of indigence in the trial court with or before filing a notice of appeal. In the absence of a timely filing, the appeal is subject to dismissal for want of jurisdiction. See Tex R. App. P. 20.1, 25.1.