
    BELL et al. v. COBB.
    (No. 7120.)
    Court of Civil Appeals of Texas. Austin.
    March 9, 1927.
    Appeal and error <&wkey;387(3) — New trial <&wkey;IIS> —Trial coiirt did not lose jurisdiction because-of late order on motion for new trial, and appeal bond held not too late (Rev. St. 1925, art. 2092, §§ 28, 31).
    Where motion for new trial was filed within-10 days after judgment, as required by Rev. St. 1925, art. 2092, § 28, trial court did not lose jurisdiction by failure to act thereon within 45 days after filing, nor was appeal bond too late, under section 31.
    Appeal from District Court, Dallas Coun-' ty; Louis Wilson, Judge.
    Action between J. P. Bell and others and Gertrude Cobb. Judgment for the latter, and the former appeál. On motion to dismiss appeal.
    Motion overruled.
    Burgess, Burgess, Chrestman & Brundidge, of Dallas, for the motion.
    Lee R. Stroud, of Dallas, opposed.
   MeOLENDON, C. J.

Appellee, plaintiff below, has moved to dismiss appeal for want of jurisdiction, on the ground that the appeal bond was not filed within the time provided in section 31, of article 2092, R. S. of 1925, which article applies to the court in which the judgment was rendered.

The record» shows: Judgment rendered November 7, 1925; defendants’ motion for new trial filed November 10, 1925; motion overruled December 28, 1925; term of court ended January 2, 1926; appeal bond filed and approved January 12, 1926.

Appellee’s contention is that, because the motion for new trial was not presented to the trial court within 30 days, nor acted upon within 45 days after date of its filing, as required by section 28 of article 2092, the trial court lost jurisdiction to pass upon it, and the order overruling it was. a nullity. Therefore, it is urged, the appeal bond came too late, under section 31 of the article. This contention was expressly overruled by the Supreme Court in Nevitt v. Wilson, 285 S. W. 1079, wherein it was held that, where motion for new trial is filed within 10 days after judgment, as required by section 28 of the article, the trial court does not lose jurisdiction of the cause or of the motion by failure to .act thereon within 45 days after filing of .motion.

The motion is overruled.

Motion overruled. 
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