Cathcart v. Childers
| Decision Date | 19 October 1956 |
| Docket Number | No. 3258,3258 |
| Citation | 296 S.W.2d 340 |
| Court | Texas Court of Appeals |
| Parties | V. A. CATHCART, Appellant, v. Alice L. CHILDERS, Appellee. |
Thomas & Thomas, Big Spring, for appellant.
Beall, Nunn & Griggs, Sweetwater, for appellee.
On February 4, 1954, V. A. Cathcart sued Alice L. Childers in trespass to try title to an interest in some lots. The defendant answered by a plea of not guilty. On April 8, 1955, plaintiff's attorney obtained an order permitting him to withdraw from the case. On April 18, 1955, the defendant filed a motion to dismiss the suit for want of prosecution and a judgment dismissing the suit for that reason was rendered on that day. In the meantime plaintiff had employed new counsel, who, according to the plaintiff's pleadings, learned of defendant's motion to dismiss on April 19th, and on April 20th, filed a motion to reinstate the case. Cathcart's original motion to reinstate contained allegations that his case was 'inadvertently' dismissed by the court; the withdrawal of plaintiff's original counsel and employment of new counsel and that the new counsel had not apprised the court of his employment; that he arranged with defendant's counsel to take the depositions of the parties on a certain day but the court reporter could not then take the depositions and they passed the matter to another date to be agreed upon; that plaintiff had a good cause of action which he should be allowed to present; that defendant did not show that any damage would be suffered by the delay and that defendant's counsel did not communicate with plaintiff's until he sent him a copy of defendant's motion to dismiss. This original motion to reinstate was filed on April 20th, two days after plaintiff's suit was dismissed, at the same term in which the judgment of dismissal was rendered, which term did not expire until the fourth Monday in June, 1955. On April 22nd, two days after the motion to reinstate was filed, the defendant filed an answer thereto. The record does not show that the original motion to reinstate was ever presented to the court or ever judicially acted upon.
On July 25, 1955, plaintiff filed an amended petition. On February 23, 1956, three terms of court having expired since the original motion was filed, plaintiff filed an 'amended motion to reinstate' his case, which he alleged was 'inadvertently dismissed by the court on April 18, 1955. He then excepted to defendant's answer to his original motion to reinstate, which had been filed in April, 1955, at the same term the case was dismissed. Plaintiff then alleged the withdrawal of plaintiff's first counsel, employment of second counsel; that the employment of second counsel had not been noted on the court's docket, but that said new counsel got in touch with defendant's counsel and told him he was employed and wanted to take the depositions of the parties and a day was agreed upon; that on that day the court reporter was unable to take the depositions and it was agreed that they would pass the case for the time being and taken the depositions later; but within five or six days thereafter defendant's counsel filed a motion to dismiss plaintiff's case and immediately presented it to the court, without notice of a hearing to plaintiff's counsel, and that on the same day the court entered an order dismissing the suit; that the court did not know plaintiff had employed new counsel; that defendant's attorney sent a copy of the motion to dismiss to plaintiff's new counsel on the same day he presented his motion to dismiss; that this was received the day after the case was dismissed and plaintiff's original motion to reinstate was filed the following day; that the trial judge did not know that Cathcart had employed new counsel; that defendant's counsel failed to reveal the facts to the court, failed to inform the court that it had agreed to 'pass the taking of the oral depositions' and failed to inform the court that he had not notified plaintiff's counsel of said motion; that, under the circumstances, the court was compelled to dismiss the case. Plaintiff prayed the court 'to reinstate this cause of action' because plaintiff's new counsel had 'inadvertently' failed to inform the court that he was employed and defendant's counsel failed to give due notice to plaintiff's counsel and 'under such circumstances procured the order of dismissal by unethical methods'; that plaintiff had a good cause of action which he should be allowed to present; that in July and August, 1955, plaintiff's counsel was on vacation and in September he went to a hospital and had two operations and was unable to attend to his work until February 1, 1956; '(e) That this Plaintiff not only admits but affirms that the term of the District Court of Howard County, Texas, in which this motion to reinstate was first styled is now long past and one or more terms has intervened since then, but notwithstanding such this Court has jurisdiction of the Motion to Reinstate now at this time, and has the same authority to reinstate the same as he would have had during the same term in which the Court entered an Order of Dismissal'; that plaintiff had a good and meritorious cause of action, as set out in plaintiff's petitions; that after an agreement to pass the case for the time being and take oral depositions plaintiff's counsel told defendant's counsel he would have to make new parties and file an amended petition; that he had a good cause of action, as shown by his amended petition, which he alleged was included in said motion; wherefore, plaintiff prayed that the court 'now reinstate this cause of action and set it down for trial--.' (Italics ours.)
On February 27, 1956, the court 'overruled' said amended motion to reinstate, reciting that the original motion to reinstate was filed April 20, 1955, during the term at which the case was dismissed; that said term had expired and other terms had intervened, which facts were admitted by plaintiff in his amended motion. The court found as a matter of law that since plaintiff's motion to reinstate was not acted on during the term in which plaintiff's suit was dismissed it had lost jurisdiction. Plaintiff has attempted to appeal from the order overruling said amended motion to reinstate.
We think the trial court correctly concluded it had lost jurisdiction of the motion to reinstate when it purported to act on the amended motion in 1956. The original motion to reinstate had been overruled by operation of law several terms prior thereto. The amended motion was not filed within twenty days after the original. It was filed after three terms had expired. It was a nullity and should have been dismissed for want of jurisdiction. Texas Rules...
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...of more than thirty days from the date of the rendition of judgment. Rule 329b, § 5, Texas Rules of Civil Procedure; Cathcart v. Childers, Tex.Civ.App., 296 S.W.2d 340. Hence, the order of reinstatement on May 13 was made after the court had lost jurisdiction. It had no power to render a 't......
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