Bass v. Hays

• Decision Date: 01 January 1873
• Citation: 38 Tex. 128
• Parties: J. M. BASS v. J. M. HAYS.
• Court: Texas Supreme Court

38 Tex. 128

J. M. BASS

v.J. M. HAYS.

Supreme Court of Texas.

1873.

1. A motion for new trial not acted on is discharged by the adjournment of the court.

2. At the close of the term the district court loses all jurisdiction over its final judgments, and has no power to vacate the same save by original bill for that purpose.

3. An order of the district court vacating a final judgment rendered in the same case at a former term, will be set aside by the supreme court on appeal by the party injured.

APPEAL from Lamar. Tried below before the Hon. A. H. Latimer.

Suit was filed by appellant against appellee to the November term, 1870. Service was had and judgment by default; writ of inquiry executed and final judgment rendered November 27, 1870, for appellant.

A motion for new trial was filed and amended at same term, but not acted upon by the court.

At the March term, 1871, another motion, or amended motion, for new trial was filed, but not acted upon until, at the July term, 1871, the court, upon said motions, granted a new trial.

At the March term, 1872, the appellant filed his motion to set aside the order of said court, rendered in said cause on the eighteenth of August, 1871, which said order set aside the judgment by default in favor of plaintiff against defendant, rendered during the November term, 1870, and granted the defendant a new trial, because he says “that the court had no jurisdiction of said case in the way attempted; it had no right to disturb its own decrees at a former term, and said order granting the new trial is, for this reason, a nullity.”

This motion was by the court overruled, to which the plaintiff excepted and gave notice of appeal to the supreme court.

Bennett & Ballinger, and S. B. Maxey, for appellant. We insist that the court had no jurisdiction at that time to hear and determine the motion for new trial, and that its whole action after the close of the November term, 1870, at which the judgment in favor of plaintiff (appellant) was rendered, is without jurisdiction, in violation of the vested rights of appellant, null and void. McKean v. Ziller, 9 Tex. 59;Laird v. The State, 15 Tex. 317;Bullock v. Ballew, 9 Tex. 500;Wilcox v. The State, 31 Tex. 588.

It is conceded that a court may grant a new trial after the close of the term, but the law places close restrictions upon the exercise of this power. It can only be done upon an original proceeding had for the purpose, and then only upon the clearest showing.

It is not pretended that the defendant was debarred by any act of plaintiff from making his defense, nor does he even set up that he had employed counsel (though that would make no difference), but simply that he had talked to a lawyer whom he had employed in other cases, and supposed he would have filed an answer, and that he did not suppose the case would have been reached so soon. All this would not have availed had he proceeded regularly. Scrivner v. Malone, 30 Tex. 775. Certainly it cannot possibly avail when he has wholly disregarded the mode pointed out by the law for obtaining a new trial after the close of the term at which judgment was rendered. “In applications for new trial at a term of the court subsequent to the trial term at which judgment is obtained, the proceeding is in the nature of an original suit in equity. Whatever, therefore, would be the subject of equitable cognizance in any case would be of like cognizance in a suit for a new trial.” Davis v. Terry, 33 Tex. 426. “The judgment becomes a vested right which can only be divested by a direct proceeding, and for sufficient legal cause, in some of the modes known to the law. The maxim of the civil law, res judicata pro veritate accipitur, is recognized and applied by our own.” Goss v. McClaren, 17 Tex. 115; see also Caperton v. Wanslow, 18 Tex. 133;Fisk...