Summary
holding that appeal from order dismissing for want of prosecution is taken from order of dismissal, not from court's ruling on motion to reinstate
Summary of this case from Smith v. Univ, N. TX HealthOpinion
No. 14-03-00062-CV.
Opinion filed February 20, 2003.
Appeal from the 56th District Court, Galveston County, Texas, Trial Court Cause No. 99CV0703.
Dismissed.
Panel consists of Justices ANDERSON, SEYMORE, and GUZMAN.
MEMORANDUM OPINION
This is an attempted appeal from an order of dismissal, signed October 24, 2000. Appellant filed an untimely motion to reinstate on June 14, 2002. On January 25, 2003, the trial court denied appellant's motion to reinstate. Appellant's notice of restricted appeal was filed on June 14, 2002.
The notice of restricted appeal must be filed within six months after the judgment is signed. See Tex.R.App.P. 26.1(c). Appellant's notice of appeal was not filed timely. A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by rule 26.1, but within the fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18 9 (1997) (construing the predecessor to Rule 26). However, the appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See Tex.R.App.P. 26.3, 10.5(b)(1)(C); Verburgt, 959 S.W.2d at 617-18. Appellant's notice of appeal was not filed within the fifteen-day period provided by rule 26.3
On January 29, 2003, notification was transmitted to all parties of the Court's intent to dismiss the appeal for want of jurisdiction. See Tex.R.App.P. 42.3(a). Appellant's response fails to demonstrate that this Court has jurisdiction to entertain the appeal. Appellant argues that this court has jurisdiction to hear the appeal on the denial of the motion to reinstate. The appeal from a dismissal for want of prosecution is taken from the order of dismissal, not from the court's ruling on the motion to reinstate. Hosey v. County of Victoria, 832 S.W.2d 701, 703 (Tex.App.-Corpus Christi 1992, no writ); Estate of Bolton v. Coats, 608 S.W.2d 722, 725 (Tex.Civ.App.-Tyler 1980, writ ref'd n.r.e.). Because the notice of appeal was not filed within six months of the October 24, 2000, order of dismissal, the notice of appeal was not timely filed.
Accordingly, the appeal is ordered dismissed.