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Rule 306a. Periods to Run From Signing of Judgment (1984)

TEXT

1. Beginning of periods. The date a judgment or order is signed as shown of record shall determine the beginning of the periods prescribed by these rules for the court's plenary power to grant a new trial or to vacate, modify, correct or reform a judgment or order and for filing in the trial court the various documents in connection with an appeal, including, but not limited to an original or amended motion for new trial, an appeal bond, certificate of cash deposit, or notice or affidavit in lieu thereof, and bills of exception, and for filing of the petition for writ of error if review is sought by writ of error, and for filing in the appellate court of the transcript and statement of facts; but this rule shall not determine what constitutes rendition of a judgment or order for any other pur­pose.

2. Date to be shown. Judges, attorneys and clerks are directed to use their best efforts to cause all judgments, decisions and orders of any kind to be reduced to writing and signed by the trial judge with the date of signing stated therein. If the date of signing is not recited in the judgment or order, it may be shown in the record by a certificate of the judge or otherwise; provided, however, that the absence of a showing of the date in the record shall not invalidate any judgment or order.

3. Notice of judgment. When the final judgment or other appealable order is signed, the clerk of the court shall immediately give notice to the parties or their attorneys of record by first-class mail advising that the judgment or order was signed. Failure to comply with the provisions of this rule shall not affect the periods mentioned in paragraph (1) of this rule, except as provided in paragraph (4).

4. No notice of judgment. If within twenty days after the judgment or other appealable order is signed, a party adversely affected by it or his attorney has neither received the notice required by paragraph (3) of this rule nor acquired actual knowledge of the order, then with respect to that party all the periods mentioned in paragraph (1) except the period for filing a petition for writ of error shall begin on the date that such party or his attorney received such notice or acquired actual knowledge of the signing, whichever occurred first, but in no event shall such periods begin more than ninety days after the original judgment or other appealable order was signed.

5. Motion, notice and hearing. In order to establish the application of paragraph (4) of this rule, the party adversely affected is required to prove in the trial court, on sworn motion and notice, the date on which the party or his attorney first either received a notice of the judgment or acquired actual knowledge of the signing and that this date was more than twenty days after the judgment was signed.

6. Nunc pro tunc order. When a corrected judgment has been signed after expiration of the court's plenary power pursuant to Rule 316 or 317, the periods mentioned in paragraph (1) of this rule shall run from the date of signing the corrected judgment with respect to any complaint that would not be applicable to the original judgment.

7. When process served by publication. With respect to a motion for new trial filed more than thirty days after the judgment was signed pursuant to Rule 329 when process has been served by publication, the periods provided by paragraph (1) shall be computed as if the judgment were signed thirty days before the date of filing the motion.

Amended by order of Dec. 5, 1983, eff. April 1, 1984: The rule collects all provisions concerning the beginning of post-judgment periods that ordinarily run from the date the judgment is signed.

Paragraph 1 is the second paragraph of former Rule 306a, with the addition of the period of the court's plenary power as defined by paragraphs (d) and (e) of Rule 329b.

Paragraph 2 is the first paragraph of former Rule 306a.

Paragraph 3 changes former Rule 306d by requiring notice by mail and incorporates that rule in to this rule.

Paragraphs 4 and 5 are new and apply when actual notice of the signing of judgment is not received within twenty days after the judgment was signed.

Paragraph 6, with respect to nunc pro tunc orders, comes from former Rule 306b and makes clear that paragraphs 1 and 4 of this Rule 306a do not revive the court's expired plenary power with respect to complaints that could have been made to the original judgment.

Paragraph 7 conforms rule 329 to the 1981 amendments to the appellate rules and eliminates the discrepancy created by those amendments in apparently providing for appeal that may expire before the time for filing a motion for new trial in cases of citation by publication.