Bolling v. Rodriguez

• Decision Date: 27 May 1948
• Docket Number: No. 11977.,11977.
• Citation: 212 S.W.2d 838
• Parties: BOLLING v. RODRIGUEZ.
• Court: Texas Court of Appeals

212 S.W.2d 838

BOLLING v. RODRIGUEZ.

No. 11977.

Court of Civil Appeals of Texas. Galveston.

May 27, 1948.

Rehearing Denied July 15, 1948.

Appeal from District Court, Brazoria County; G. P. Hardy, Judge.

Personal injury action by Robert A. Rodriguez against C. E. Bolling. From the judgment, the defendant appeals.

Reversed and remanded.

Fulbright, Crooker, Freeman & Bates, M. S. McCorquodale, and James C. Watson, all of Houston, and Carlos Masterson, of Angleton, for appellant.

Davis & Henderson, of Angleton, for appellee.

GRAVES, Justice.

This appeal is from a $15,000.00-judgment of the District Court of Brazoria County, in favor of appellee against the appellant entered in part upon a jury's verdict in response to 37 special-issues submitted to it, and in part, as recited by the court, upon "the undisputed evidence, and the stipulations of counsel".

Such award was allowed the appellee as compensation for personal injuries so found to have resulted to him from a collision on State Highway 36 in the Town of Brazoria, Texas, between a motorcycle operated by himself and an automobile driven by the appellant; the court and jury found the mishap had been wholly caused by appellant's negligent-operation of his automobile in a number of specified particulars, while, in turn, the appellee had been free of any negligence in his driving of the motorcycle.

After the appeal, in due course of procedure, had reached this Court, on — to-wit—the 14th day of January, 1948, and prior to its submission for determination upon the merits thereof, the appellee, on April 3 of 1948, filed in the district court what was termed his "Motion to Correct Transcript" whereby he sought to have the trial judge so amend the court's original order overruling appellant's motion for new trial as to show, in substance and effect, that the parties then orally agreed the appellant would not contend on appeal that his objections as then filed by him to Paragraph C of Special-Issue No. 37, of the court's charge, included "the grounds that said special issue should have restricted the jury's findings to the amount of the lost earnings from the date the plaintiff arrived at 21 years of age until the date of the trial".

In response to such motion, on the 8th day of April, 1948, but entered on the 12th day of April, 1948, Honorable G. P. Hardy, Jr., Judge, granted an amended or corrected order, overruling appellant's motion for a new trial, substantially in this form:

"* * * it is accordingly ordered that the motion of the Defendant, C. E. Bolling, for a new trial in the above case be, and the same is hereby overruled, with the qualification and explanation that the undersigned, as Presiding Judge, finds as a fact, upon good and sufficient testimony, that at the time Counsel for the Defendant was dictating his exceptions and objections to the Court's charge, and prior to filing them, he agreed with Counsel for the Plaintiff to waive and did waive any objection to Paragraph C of Special Issue No. 37, upon the grounds that said paragraph permitted the jury to award damages to Rodriguez for loss of earnings from the date of the accident to the date he arrived at the age of 21 years.

"It is further ordered that this amended-order be filed by the Clerk of this Court as a part of the record in the above entitled and numbered cause, and a copy thereof be forwarded to the Clerk of the Court of Civil Appeals for the First Supreme Judicial District of Texas in Galveston, Texas, to become a part of the record in the cause therein styled and numbered C. E. Bolling v. Robert A. Rodriguez, No. 11,977. * * *"

Accompanying such supplemental transcript, which was presented to the Clerk of this Court for filing on April 20 of 1948, but not filed by him unless and until ordered by this Court, there was also presented for filing here, along-with it, what the parties and Judge Hardy of such court agreed was a correct statement-of-the-facts presented on the hearing before such Judge of such motion to so correct and supplement the original transcript.

On presentation to it of the motion for the filing of this supplemental-transcript among the papers of this cause, this Court took the same for consideration with the appeal itself, upon submission thereof on May 13 of 1948. After due consideration, permission to file the motion is refused, upon the holding that this Court has no jurisdiction to entertain the same, since it came here under these undisputed circumstances:

(1) The order overruling motion for new trial was entered November 26, 1947, and the order amending such order overruling motion for new trial was entered April 12, 1948, and dated April 8, 1948;

(2) The amended-order is in direct contradiction to the order overruling the exceptions and objections of Appellant to the court's charge, wherein it is stated: "The foregoing special exceptions and objections were by agreement of the parties, and with the approval of the Court, dictated to the Court Reporter, after both sides had rested, and after the charge of the Court had been submitted to the parties in writing, and before such charge was read to the jury, and each and all of the foregoing objections and exceptions were duly presented to and considered by the Court, and the same are hereby overruled; to which ruling, the defendant is allowed an exception." There has been no attempt to amend the order overruling the objections and exceptions of Appellant; the objection to the earnings of the minor was made at that time, in Paragraph VI of his exceptions to the charge, as follows:

"VI.

"Special Issue No. 37, and particularly paragraph (c) thereof, because in such paragraph the jury will be permitted to award the plaintiff Rodriguez compensation for the loss of earnings from the date of the accident to the time of trial, when the evidence is insufficient to establish the right of the plaintiff to such earnings.

"Further to paragraph (c) of Special Issue No. 37, because the evidence is insufficient to establish the amount of the loss of earnings, to which the plaintiff Rodriguez would be entitled up to the date of trial."

(3) No action was taken by Appellee from the time the motion for new trial was filed in the trial court until after the brief of Appellant was filed in this Court; the record will reflect that Appellant's motion for new trial was filed on November 26, 1947, and the brief of Appellant was filed in this Court on March 4, 1948, more than three months after motion for new trial was filed in the trial court.

(4) Counsel for Appellee approved the order overruling motion for new trial below, which is now contained in the record. No question was raised at that time, nor within the fifty days thereafter, as required by Rule 381, Texas Rules of Civil Procedure, as to any claimed oral agreement in respect to an objection concerning the earnings of the minor.

In other words, it is held that, under the rules and procedure referred to, neither the trial court nor the Judge thereof had, on April 8 of 1948, any authority or jurisdiction to so change the judicial effect of the trial court's order of November 26, 1947, so overruling appellant's motion for new trial therein, by any such attempted finding on April 8, 1948, of there having been a purported waiver on November 26 of 1947 by counsel for appellant of any objection he had theretofore made to Paragraph C of Special-Issue No. 37, as submitted to the jury by the trial court; indeed, while the order is termed one "to correct the record", its sole substance and effect is to undertake to find as a fact on April 8 of 1948, after full evidence heard on that day, that the counsel for this appellant had, on November 26, of 1947, then agreed to waive any objection he had then filed to such Paragraph C of Special Issue No. 37 in the face of the recited orders to the contrary then made by the trial court, and carried by the appellant into the undisputed procedure of the former trial, whereby he had perfected his appeal upon such record then made of the trial below.

While, as a general rule, the perfection of an appeal terminates the authority of the trial court (Gulf, C. & S. F. Ry. Co. v. Ft. Worth & N. O. Ry. Co., 68 Tex. 98, 2 S.W. 199, 3 S.W. 564; 3 Tex.Jur. P. 369), it is as well settled that such trial court may correct a judgment or record after adjournment of the trial court term, and the perfection of an appeal to the Court of Civil Appeals, at any time before final judgment in the appellate court, so as to make the record in the trial court speak the truth (3 Tex.Jur., Page 372); but such correction must be...