
    G. K. HESTER and Rose Keefer, Appellants, v. Tom KEEFER, Administrator of the Estate of Caroline Casey, Deceased, Appellee.
    No. 5277.
    Court of Civil Appeals of Texas, Waco.
    July 16, 1973.
    Rehearing Denied Aug. 9, 1973,
    
      Holcomb & Norwood, Jack Norwood, Tyler, for appellants.
    E. A. Berry, Jr., Roger Knight, Jr., Madisonville, for appellee.
   OPINION

JAMES, Justice.

This is a case wherein Appellee Tom Keefer, Administrator of the Estate of Caroline Casey, deceased brought suit against Appellants G. K. Hester and Rosa Keefer for cancellation of certain instruments executed by deceased, and for the recovery of certain funds alleged to belong to the deceased’s estate. Based upon a jury verdict favorable to Appellee Administrator, the trial court entered its judgment in favor of Appellee, from which Appellants prosecute this appeal. We have determined that this court lacks jurisdiction for the reason that the appeal bond was not timely filed, and hence dismissed the appeal.

All pertinent dates concerning the appellate steps herein referred to occurred during the year 1973. The following is a re-sumé of the sequence of events considered by us in our determination of the question of jurisdiction:

Date of entry of Judgment: February 2.
Motion for New Trial filed: February 9.
Order overruling Motion for new trial entered: April 6.
Appeal Bond filed: April 30.

The Motion for New Trial was overruled by operation of law forty-five days after February 9, the date of its filing. The forty-fifth day was Monday, March 26. Rule 329b, Texas Rules of Civil Procedure. Therefore, since the motion for new trial had been overruled by operation of law after March 26, the trial court’s order of April 6 overruling said motion was a nullity.

The Appellants had thirty days from Monday, March 26 in which to file their appeal bond, the thirtieth day being Wednesday, April 25. Since the appeal bond was filed April 30, it was five days late. Rule 356, Texas Rules of Civil Procedure. The thirty day period of time in which the appeal bond must be filed, which commences with the date of the overruling of the motion for new trial, is mandatory and jurisdictional. See Glidden Company v. Aetna Casualty and Surety Company (1956), 155 Tex. 591, 291 S.W.2d 315; Texas Employers Insurance Assn. v. Martin (1961), 162 Tex. 376, 347 S.W.2d 916; Lucchese v. Specia (San Antonio, Tex.Civ. App.1955), 281 S.W.2d 725, writ refused; Flowers v. Muse (San Antonio, Tex,.Civ. App.1968), 427 S.W.2d 727, writ refused; Bellmead State Bank v. Campbell (Waco, Tex.Civ.App.1964), 386 S.W.2d 205, no writ history; Azopardi v. Hollebeke (Waco, Tex.Civ.App.1968), 428 S.W.2d 167, no writ history.

In the case at bar, the trial court on February 13, entered an order setting a hearing on the Motion for New Trial for one o’clock P.M. on March 2; however, the record reflects that no action was taken on the Motion until April 6, when the order was entered overruling the motion for new trial.

In the light of the foregoing, this court is without jurisdiction, and the appeal is accordingly dismissed.

Appeal dismissed.

OPINION ON APPELLANTS’ MOTION FOR REHEARING

On July 31, 1973, after the entry of our original opinion, Appellants caused a Supplemental Transcript to be filed containing an order of the trial court signed by the trial court on July 27, 1973, shown to be filed with the District Clerk on July 31, 1973, which order reads as follows :

“ORDER RE-SETTING HEARING
“Be it remembered on this the 26th day of February, 1973, the Court on its own motion, determined that Defendants Motion for New Trial heretofore filed on the 9th day of February, 1973, and set for hearing by this Court for 1:00 o’clock p. m. on March 2, 1973 should be re-set and hearing should be had before this Court on “Defendants Motion for New Trial on April 6, 1973 and counsel for Plaintiff and counsel for Defendant having agreed to said re-setting of the hearing on Defendants Motion for New Trial:
“IT IS THEREFORE ORDERED that said Motion be set for hearing before the Judge of this Court, sitting in the regular Courtroom in the Courthouse at Madisonville, Madison County, Texas, on the 6th day of April, A.D., 1973, at 1:00 o’clock p. m.
“SIGNED this 27th day of July, 1973.
James F. Warren_ JAMES F. WARREN, JUDGE 12th Judicial District Court Madison County, Texas.”

Appellants contend that since the order shows on its face that the trial court on its own motion determined that the hearing on the Motion for New Trial should be re-set from March 2, 1973, to April 6, 1973, and the order further recites that counsel for both sides agreed to such re-setting of the hearing, that this was a compliance with Rule 329b, Texas Rules of Civil Procedure, and that the effective date of the order overruling the motion for new trial was extended to April 6, 1973. If this contention were correct, then Appellants’ appeal bond (filed on April 30, 1973) would have been timely filed.

We overrule this contention.

As stated in our original opinion, the forty-fifth day from the date the Motion for New Trial was filed was Monday, March 26, 1973. Since the trial court had not determined or disposed of this Motion for New Trial on or before Monday, March 26, 1973, this means that as of Tuesday, March 27, 1973, the Motion for New Trial was overruled by operation of law. Therefore, the trial court’s order signed July 27, 1973, filed with the District Clerk on July 31, 1973, and shown in the Supplemental Transcript was late and is a nullity. Moreover, the recitation in the order that counsel for both sides agreed to the re-setting of the hearing fails to meet the requirements of Section 3 of Rule 329b, which requires “one or more successive written agreements of the parties in the case filed with the clerk of the court,” postponing a decision on the Motion to “a day certain specifically set out in any such agreement.” See Texas and New Orleans Railroad Co. v. Arnold (Tex.Sup.Ct.1965) 388 S.W.2d 181.

Appellants’ Motion for Rehearing is accordingly overruled.  