
    LONG et al. v. MARTIN.
    (No. 3715.)
    
    (Supreme Court of Texas.
    Jan. 31, 1923.)
    1. Appeal and error <©=338( I)— Judgment of Court of Civil Appeals cannot be reviewed unless petition for writ of error lodged within 30 days from judgment.
    A judgment of the Court of Civil Appeals is not subject to review, through the exercise of the appellate jurisdiction of the Supreme Court, whenever 30 days elapse subsequent to the rendition of such judgment without actual lodgment of a petition for .writ of error with the clerk of the Court of Civil Appeals.
    2. Appeal and error <©=3347(2) — Failure of clerk of Court of Civil Appeals to enter order overruling motion for rehearing unavailing to extend time to present petition for writ of error.
    The failure of the clerk of the Court of Civil Appeals to enter the order overruling motion for rehearing for a few days is of no avail to extend the time for presenting the petition for writ of error.
    3. Appeal and error <©=>347(3) — Order overruling motion for rehearing rightly entered as of date pronounced.
    Where the clerk of the Court of Civil Appeals failed for a few days to enter an order overruling motion for rehearing, the order was rightly entered as of the day when it was pronounced.
    4. Appeal and error <©=>357(2) — Failure to receive postal card notice by clerk of Court of Civil Appeals of overruling motion for new trial no excuse for failure to take further action within prescribed time.
    It is the duty under rule 65, Court of Civil Appeals (142 S. W. xvi), for the clerk thereof to give immediate notice by post card upon the rendition of judgment overruling a motion for rehearing, and the failure to receive such notice is no excuse for the failure to take such future action as may be desired in reference to the cause within the time prescribed by the statute and rules.
    5. Timd <®=>10(9) — A holiday cannot be excluded in computing prescribed time for thing writ of error.
    A holiday cannot be excluded in computing the 30 days from the rendition of the judgment in the Court of Civil Appeals -within which to file a petition in error for review of the judgment by the Supreme Court.
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    
      Suit by M. E. Martin against H. A. Long and others. Judgment for plaintiff was affirmed by Court of Civil Appeals (2S4 S. W. 91), and defendants bring i writ of error.
    Writ and petition dismissed.
    Bullington, Boone, Humphrey & Hoffman, of Wichita Palls, and W. L. Eason, of Waco, for plaintiffs in error.
    Fitzgerald &' Hatchett, of Wichita Falls, for defendant in error.
    
      
       Rehearing denied March 7, 1923.
    
   GREENWOOD, J.

The Court of Civil Appeals affirmed the judgment of the trial court in this case on the 25th day of May, 1921. and overruled a motion for rehearing on October 12, 1921. On the thirty-first day thereafter, on November 12, 1921,-the petition for writ of error was filed by the clerk of the Court of Civil Appeals.

Plaintiffs in error seek to sustain this court’s jurisdiction to review the judgment of the Court of Civil Appeals, on a petition filed after the lapse of more than 30 days from the overruling of the motion for rehearing, on the following grounds:

.First. That the order overruling the motion for rehearing was not actually entered in the minutes of the Court of Civil Appeals until less than 30 days before November 12, 1921.

Second. That the Governor of Texas, having designated November 11, 1921, as a holiday by a proclamation issued November 8, 1921, it ought to be excluded in computing the 30 days allowed for the filing of the petition for writ of error.

Third. That plaintiffs in error and their counsel used due diligence to file the petition for writ of error within 30 days from the date on which the motion for rehearing was overruled.

Notwithstanding the facts disclose that the order overruling the motion for rehearing was not entered until two or three days after its rendition, and that the Governor designated as a holiday the last day allowed for the filing of the petition for writ of error, and that counsel for plaintiffs in error used the utmost diligence to file the petition in time, yet we have no jurisdiction to review the judgment of the Court of Civil Appeals.

As repeatedly announced, a judgment of the Court of Civil Appeals is not subject to review through the exercise of the appellate jurisdiction of the Supreme Court, whenever 30 days elapse subsequent to the rendition of such judgment without the actual lodgment of a petition for writ of error with the clerk of the Court of Civil Appeals. Schleicher v. Runge, 90 Tex. 456, 39 S. W. 279; Vinson v. Carter & Bro., 106 Tex. 273, 166 S. W. 363; Henningsmeyer v. Bank, 109 Tex. 116, 195 S. W. 1137, 201 S. W. 662; Flattery v. Miller (Tex. Sup.) 212 S. W. 932.

In the case of Schleicher v. Runge, supra, the parties expressly stipulated in writing that the delay in filing the petition for writ of error was without fault on the part of the applicant, and the defendant in error consented that the petition might be treated as having been filed in due time. It was nevertheless determined that the delay was fatal to the exercise of jurisdiction by the Supreme Court.

The failure of the clerk of the Court of Civil Appeals to enter the order overruling the motion for rehearing for a few days is of no avail to extend the tube for presenting the petition for writ of error. That order was rightly entered as of the day when it was pronounced. Rule 65 (142 S. W. xvi) for the Courts of Civil Appeals makes it the clerk’s duty to give immediate notice by postal card upon the rendition of a judgment overruling a motion for rehearing, 'and further provides that even failure to receive the notice shall be no excuse for failure to take such future action as may be desired in reference to the case “within the time prescribed by the statutes and rules.” '

The holiday cannot be excluded in computing the 30 days for filing the petition. Hanover Fire Ins. Co. v. Shrader, 89 Tex. 35, 32 S. W. 872, 33 S. W. 112, 30 L. R. A. 498, 59 Am. St. Rep. 25.

It is therefore ordered that the writ of error and the petition therefor be dismissed for want of jurisdiction. 
      cg^pFor other oases see same topic and KS¥-'NUMBER in all Key-Numbered Digests and Indexes
     