Burgess v. State
| Decision Date | 05 April 1961 |
| Docket Number | No. 13730,13730 |
| Citation | 345 S.W.2d 582 |
| Parties | F. W. BURGESS et ux., Appellants, v. STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Osce Fristoe, Harlingen, for appellants.
F. T. Graham, Brownsville, for appellee.
This is a condemnation proceeding by the State of Texas against F. W. Burgess and wife, Mabel C. Burgess, to condemn land for highway purposes out of two tracts of land owned by defendants. The case was tried in the County Court at Law of Cameron County, Texas, before a jury, on special issues. The trial court ultimately rendered judgment upon the verdict of the jury in favor of plaintiff for the land and for the defendants for compensation. F. W. Burgess and wife have prosecuted this appeal.
Appellants' first contention is that the trial court erred in entering judgment nunc rpo tunc at a subsequent term of the court, when it had already entered a judgment on the verdict of the jury and then set that judgment aside.
To understand appellants' contention, a complete statement of what happened in the trial court is required. Art. 1970-305, Sec. 7, Vernon's Ann.Tex.Stats., provides for terms of court as follows:
The trial began on April 25, 1960, and the jury returned their special issue verdict on April 26, 1960, which verdict was then and there received and filed. On April 28, 1960, appellants filed their motion for new trial, and on April 30, at the request of appellants, the trial court entered an order extending the term for the specific purpose of passing upon appellants' motion for a new trial or amendments thereof. The term of court expired on April 30, 1960. On May 3, 1960, appellants filed their first amended motion for a new trial. On April 27, 1960, appellee at the request of the court prepared a draft of the final judgment. This draft was left with the clerk of the court. The trial court did not sign or approve this draft of the judgment during term time. The trial court was of the impression that it had continued the term generally, while in fact it had continued it for the sole purpose of passing on appellants' motion for a new trial.
On June 9, 1960, the trial court entered an order overruling appellants' motion for a new trial, and the same time rendered a final judgment in the cause.
Thereafter, on June 17, 1960, appellants filed a motion reciting that above facts and asked the court to set aside the judgment entered on June 9, 1960, and to enter a judgment nunc pro tunc upon the verdict of the jury, which motion was granted. The former judgment was set aside, and judgment nunc pro tunc was entered on June 27, 1960, as of April 26, 1960. Thereafter, on June 30, 1960, appellants again filed a motion for new trial, which was also overruled by the court.
Appellants' exact contention here is that when the trial court set aside the judgment which it entered on June 9, 1960, it in effect granted a new trial and could not thereafter enter another judgment nunc pro tunc. We overrule this contention.
The entry of the judgment by the court on June 9, 1960, was a void act, and the judgment so entered was void and of no effect. It is clear that this case was tried and the verdict of the jury rendered during the March-April term of the County Court at Law of Cameron County. No attempt was made to continue the term, except for the limited purpose of passing upon the motion for a new trial. When the term expired without a judgment having been entered, the trial court was without jurisdiction at...
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