Blum v. Wettermark

Decision Date23 November 1882
Docket NumberCase No. 1326.
Citation58 Tex. 125
CourtTexas Supreme Court


APPEAL from Rusk. Tried below before the Hon. A. J. Booty.

Scott & Levi, N. G. Bagley and Drury Field, for Blum et al.

G. H. Gould and Jones & Wynne, for Wettermark et al.


These cases, being in fact one and the same, have been consolidated and will be considered together. From the brief of counsel for Blum et al. we extract the following history of the case:

Leon & H. Blum, Holf, Weiss & Co. and Heidenheimer Bros., creditors of Morris Crown, acting in their own interest and that of the other creditors of Crown, brought this suit April 25, 1881, against Sharp B. Whitley as assignee of said Crown, and against Charles L. Numully and Charles G. Burnett as the sureties on the official bond of said assignee, and against A. Wettermark and Focke & Wilkens as colluding with said assignee in the conversion of one hundred and six bales of cotton belonging to said Crown's estate and distributable among the creditors of Crown, including petitioners. The suit is for the value of the cotton, $8,000, to be administered for the benefit of the creditors of Crown entitled to take under the assignment, to remove Whitley as assignee, and to appoint some person to take charge of the estate in the interest of the creditors. Judgment January 16, 1882, in favor of plaintiffs against Whitley, Wettermark and Focke & Wilkens for $5,250, the value of the cotton, and against Burnett and Numully for $5,000, the amount of the official bond on which they were sureties, the recovery to stand as assets of Crown's estate and to be administered for the creditors entitled. The decree removes Whitley as assignee and appoints Leon Blum receiver to take charge of the recovery, the receiver to give bond in $10,000, conditioned to perform his duties and obey the directions of the court.

Motion for new trial made by defendants and overruled, January 16, 1882, defendants, in open court, giving notice of appeal.

February 8, 1882, execution issued on said judgment, and levied on money to satisfy same and all costs of suit. February 8, 1882, defendants filed their appeal bond and assignments of error, and sued out a writ of supersedeas against said execution. February 8, 1882, defendant Wettermark made new motions for new trial, reciting the foregoing proceedings as having been previously had, and asking that judgment be set aside and execution and return be quashed.

February 9, 1882, Whitley, Numully and Burnett filed a motion to reform the judgment. February 11, 1882, the court set aside the order overruling the first motion for new trial and granted the second motion for new trial, setting aside the judgment on the merits of January 16, 1882, and quashing and vacating the execution and return issued February 8, 1882, to which action of the court the plaintiffs excepted on the ground that at the time of making the order the defendants had perfected their appeal to the supreme court and obtained a supersedeas. The term of court ended February 11, 1882.

At the next term of court plaintiffs made a motion reciting the fact that the court had announced its intention to try again the issues between the parties, and also reciting the previous proceedings in the cause, and asked that the court take no further action, but let the cause remain on the docket to await the mandate of the supreme court on defendants' appeal. The court refused to make any order on this motion, but called the case for trial. The plaintiffs declined to announce for trial, because the jurisdiction of the district court was ended and that of the supreme court vested as to the merits of the cause upon the perfection of defendants' appeal. The cause was therefore dismissed for want of prosecution. The plaintiffs moved to reinstate the case on the docket to await the mandate of the supreme court on the defendants' appeal, and the court overruled the motion, and to this action of the court the plaintiffs excepted and gave notice of appeal.

The transcript in No. 1326 is filed by the plaintiffs in the court below, who ask an affirmance of the judgment of January 16, 1882, as on the appeal of the defendants below, and that the order of dismissal for want of prosecution entered at the subsequent term, be reversed as upon the appeal of plaintiffs below. Their propositions assert that the judgment of January 16th was in its nature final, and that the defendants, after a motion for new trial had been overruled, perfected an appeal to this court, and that thereby the jurisdiction of the district court was superseded, and jurisdiction over the merits of the whole suit was transferred to and vested in this court. Hence they say that the subsequent order of the district court setting aside the judgment was void, and the order of that court at its July term, dismissing the case, was also erroneous or void.

The settled rule of the common law is thus stated in Freeman on Judgments, quoting from Lord Coke: “During the term wherein any judicial act is done, the record remaineth in the breast of the judges of the court and in their remembrance, and therefore the roll is alterable during that term, as the judges shall direct; but when the term is past, then the record is in the roll, and admitteth no alteration, averment or proof to the contrary.” Mr. Freeman proceeds: “Of the law thus laid down, the only part remaining unshaken to the present time is that during the term the proceedings remain in the breast of the judges. Not only the records during that time are subject to the revision of the court, but the judgment itself may be altered, revised or revoked, as well as amended in respect to clerical errors and matters of form.” Sec. 69.

This rule has often been affirmed by this court. Wood v. Wheeler, 7 Tex., 16;Sweeney v. Jarvis, 6 Tex., 39;Chambers v. Hodges, 3 Tex., 517;Puckett v. Reed, 37 Tex., 308;Milam County v. Robertson, 47 Tex., 222;Bryorly v. Clark, 48 Tex., 353.

In accordance with this fixed principle, the uniform practice, prior to the adoption of the Revised Statutes, was, in cases of appeal, to regard the case as in no event returnable to this court sooner than it would have been had the appeal bond been filed and approved on the last day of the term of the district court. That is, if notice of appeal were given, and the appeal perfected by giving bond during the term, so that nothing more remained for appellant to do on his part to secure his right of appeal, still the appeal was not regarded as perfected for the purpose of fixing the time within which the transcript was...

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30 cases
  • Crawford v. Chicago, Rock Island & Pacific Railway Company
    • United States
    • Missouri Supreme Court
    • 27 janvier 1902
    ...of the grant of appellate judicial power given it by the Constitution and laws." The court in that case expressly approved Blum v. Wettermark, 58 Tex. 125, in which it said: "Yet, so far as we are advised, it was never held or claimed that such notice perfected the appeal so as to divest th......
  • Crawford v. Chicago, R. I. & P. Ry. Co.
    • United States
    • Missouri Supreme Court
    • 27 janvier 1902
    ...of the grant of appellate judicial power given it by the constitution and laws." The court in that case expressly approved Blum v. Wettermark, 58 Tex. 125, in which it was said: "Yet, so far as we are advised, it was never held or claimed that such notice perfected the appeal, so as to deve......
  • Waters-Pierce Oil Co. v. State
    • United States
    • Texas Court of Appeals
    • 28 juin 1907
    ...of such a bond, the district court, during the term, still has jurisdiction to modify or set aside the judgment appealed from (Blum v. Wettermark, 58 Tex. 125; Garza v. Baker, 58 Tex. 487), but not to enforce such judgment. When the bond has been filed and approved, the complaining party ha......
  • Risher v. Risher, 19067
    • United States
    • Texas Court of Appeals
    • 4 janvier 1977
    ...Houston (14th Dist.) 1970, no writ). The same rule should apply when a motion is overruled by a signed order. See Leon & H. Blum v. Wettermark, 58 Tex. 125, 127 (1882). In view of these decisions, it seems incongruous that the trial court lacks the power to set aside an erroneously entered ......
  • Request a trial to view additional results

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