Opinion
No. 12936.
September 14, 1955.
Appeal from the 79th District Court, Starr County, C. W. Laughlin, J.
Gerald Weatherly, Rio Grande City, for appellant.
Sam H. Burris, Alice, for appellee.
This suit was instituted by Starr County against J. C. Guerra in the District Court of Starr County as Cause No. 3017, seeking a temporary injunction, and upon final hearing a permanent injunction, ordering the defendant to desist and refrain from attacking or questionsing an agreed judgment in Cause No. 3002, styled Starr County, Texas v. J. C. Guerra, rendered in the District Court of Starr County on May 18, 1955.
The trial court sustained appellee's plea of 'Another Action Pending' and dismissed the cause, from which judgment Starr County has prosecuted this appeal.
Appellee's plea of 'Another Action Pending' was based upon the fact that on May 31, 1955, thirteen days after judgment had been rendered in Cause No. 3002, appellant filed a motion for a new trial, and therefore that cause was still pending in the District Court of Starr County. Rule 329-b, Texas Rules of Civil Procedure, rubd. 1, provides that a motion for new trial must b filed within ten days after the judgment is rendered. The filing of a motion for new trial on the thirteenth day after the rendition of judgment was a nullity and of no force or effect. Forrest v. Beynon, Tex.Civ.App., 179 S.W.2d 355; Rule 329-b, supra. There being no motion for a new trial filed within the prescribed time, the judgment became final thirty days after it was rendered. Rule 329-b, T.R.C.P. Cause No. 3002 was not a pending cause when the plea of 'Another Action Pending' was filed on July 7, 1955.
The trial court erred in sustaining appellee's plea of 'Another Action Pending' and dismissing this cause. Accordingly, the judgment will be reversed and the cause remanded for further action not inconsistent with this opinion.