
    O. W. Thomas v. Wm. J. Murphy et al.
    No. 6829.
    Decided April 17, 1935.
    (81 S. W., 2d Series, 59.)
    
      Weslow, Beadle & Mooney, of Houston, for plaintiff in ■error.
    Court has right to pass upon motion for new trial within 45 days after it is filed, though not formally presented within the 30 days required by statutes. Nevitt v. Wilson, 116 Texas, 29, 285 S. W., 1079; Marquis v. Reed, 46 S. W. (2d) 711.
    
      Sewall, Taylor, Morris & Garwood, R. E. Seagler and Fulbright, Grooker & Freeman, all of Houston, for defendants in error.
   Mr. Judge SMEDLEY

delivered the opinion of the Commission of Appeals, Section B.

This case is ruled by Independent Life Insurance Company of America v. Work, 124 Texas, 281, 77 S. W. (2d) 1036; Dallas Storage & Warehouse Company v. Taylor, 124 Texas, 315, 77 S. W. (2d) 1031, and Millers Mutual Fire Insurance Company of Texas v. Wilkirson, 124 Texas, 312, 77 S. W. (2d) 1035, construing Subdivisions 28, 29 and 30 of Article 2092, Revised Civil Statutes of 1925, after the amendment of Section 28 by Chapter 70, Acts 5th Called Session, 41st Legislature, (1930).

Judgment was rendered in the trial court on December 13, 1933, against plaintiff in error, and in favor of defendants in error. On December 21, 1933, plaintiff in error filed his motion for new trial, which was not presented to the court until January 29, 1934, when it was overruled by the court because presented more than thirty days after its filing. Plaintiff in error filed his appeal bond on February 13, 1934. The Court of Civil Appeals dismissed the appeal. 70 S. W. (2d) 1020.

The motion for new trial was overruled by operation of law at the expiration of thirty days from December 21, 1933, the date of its filing, that is on January 20, 1934. The appeal bond was filed, as required by Subdivision 31 of Article 2092, within thirty days after the date last named. The appeal should not have been dismissed.

The judgment of the Court of Civil Appeals dismissing the appeal is reversed and the cause is remanded to that court.

Opinion adopted by the Supreme Court April 17, 1935.  