
    WITHERS v. BOLLIGER.
    No. 12941.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 11, 1935.
    Rehearing Denied Feb. 15, 1935.
    See, also, 66 S.W.(2d) 427.
    M. Kleberg, of Fort Worth, for appellant.
    J. W. Stitt, Goree & Rice, and Eugene Bol-liger, all of Fort Worth, for appellee.
   LATTIMORE, Justice.

Appellee obtained a judgment by default against appellant in May, 1932, in the Sixty-Seventh district court of Tarrant county, to which, within the 10 days by law allowed, appellant filed her motion for new trial, which motion she presented for adjudication to the trial judge within 30 days thereafter.

The trial judge announced that he took the motion under advisement, and has made no further announcement of his decision to this •hour. The court at the end of each term entered a general order passing all undisposed of motions for new trial to the next term.

In January, 1933, appellee, Bolliger, procured issuance of an execution against which appellant moved to recall and quash, alleging that no final judgment had been entered against her, in that her motion for new trial is still pending. Article 2092, subd. 28, R. S., provides that no motion for new trial shall be considered waived or overruled because not acted on at the term of court at which it was filed, but may be acted on at the succeeding term or at any time which the judge may fix; all motions or amended motions “must” be presented within 30 days after the original motion or amended motion is filed, and “must” be disposed of within not exceeding 45 days after the' original or amended motion is filed unless by agreement of parties the decision on the motion is postponed to a later date. The Supreme Court of Texas held in Millers’ Mutual Fire Ins. Co. v. Mrs. Katie Wilkirson, 77 S.W.(2d) 1035, on Dec. 31, 1934, that such-motion for new trial is overruled by operation of law at the expiration of the statutory time provided by article 2092, R. S. The time,for an appeal, therefore, had passed when the execution was issued.

The judgment of the trial court is affirmed.  