Summary
finding intent to vacate based on fact that second judgment was titled "Amended Judgment" and findings of fact and conclusions of law noted trial court had amended the first judgment
Summary of this case from Quanaim v. Frasco RestOpinion
No. B-7471.
May 24, 1978.
Appeal from the Sixth Judicial District Court, Fannin County, Brasewell, J.
Yarborough Pope, Frank H. Pope, Jr., Bedford, for petitioner.
Ed T. Smith, Bonham, for respondent.
ON APPLICATION FOR WRIT OF ERROR
B. M. Machine Company instituted this suit against Avionic Enterprises, Inc. alleging breach of contract. The court of civil appeals dismissed B. M.'s appeal for want of jurisdiction because B. M. failed to post a cost bond within thirty days of the first judgment. 561 S.W.2d 558. On April 14, 1977, the trial court rendered its first judgment, headed "Final Judgment." On April 29, 1977, the court rendered a second judgment, headed "Amended Judgment." On May 5, 1977, the trial court filed its findings of fact and conclusions of law which specifically noted that the first judgment had been amended on April 29, 1977. On May 20, 1977, B. M. filed its cost bond appealing from the second judgment. The bond was timely for an appeal from the second judgment.
The trial court retained jurisdiction to reform or set aside its first judgment for a period of thirty days following rendition. Rule 329b, Tex.R.Civ.P. The record reflects that the second judgment reformed and, in effect, vacated the first judgment. The decision of the court of civil appeals conflicts with this court's opinion in City of West Lake Hills v. State ex rel. City of Austin, 466 S.W.2d 722 (Tex. 1971).
Accordingly, we grant B. M.'s writ of error and without hearing oral argument, reverse the judgment of the court of civil appeals and remand this cause to the court of civil appeals for that court's consideration. Rule 483, Tex.R.Civ.P.