City of Brownsville v. Hord

Decision Date01 January 1875
Citation43 Tex. 440
CourtTexas Supreme Court
PartiesCITY OF BROWNSVILLE v. BASSE & HORD.
OPINION TEXT STARTS HERE

ERROR from Calhoun.

The appellees filed on the 20th May, 1875, the following motion:

“The motion and petition of Elisha Basse, the surviving defendant in the original cause, and of Charles Stillman and Wm. G. Hale, the present assigns of said Basse & Hord, show to this court that on the 17th day of June, A. D. 1872, a judgment was rendered by the Supreme Court of Texas in this cause, in the words and figures following, to wit:

‘And in the same court on the 17th day of June, A. D. 1872, this cause again came on to be heard on the transcript of the record, and the same being inspected, because it is the opinion of the court that there was error in the judgment, it is considered adjudged and ordered that the judgment of the court below be reversed, and the cause remanded for further proceedings, in accordance with the opinion of this court, and defendants in error pay all costs in this behalf expended, and this decision be certified below for observance.’ 'DD'

And that thereafter, without notice to the counsel to the defendants in error from the counsel for the plaintiff in error, or from the court, but with the design and intent of injuring your petitioners by inducing said Supreme Court to assume a power beyond its jurisdiction, the plaintiff in error made the following motion in said court on the 19th day of June, 1872:

“The City of Brownsville, the plaintiff in error in the above-entitled suit, by its counsel moves the court to order that the judgment of this honorable court therein be reformed so as to make it conformable to what is decided in the opinion of the court, by striking out the words ‘and remanded to be proceeded with in accordance with this opinion,’ and inserting for the same words ‘and dismissed.’

And in support of this motion the plaintiff in error refers to the record of said suit, by inspection of which it appears that the motion should be granted for the following among other important causes:

1. Said opinion shows that the title to the lands in controversy is not in defendants in error, but is in plaintiff in error, as nothing remains to be decided in the court below save what might be judged in a second suit instituted in the proper county and not in Calhoun county.

2. No other judgment than one of reversal and dismissal is the appropriate legal consequence of the opinion of the court.

3. The plaintiff in error ought not to be subjected to protracted litigation in Calhoun county in a suit where everything in issue is res judicata.

Which motion of the said plaintiff in error in the said Supreme Court was not made known, as before stated, to your petitioner, but by a system of collusion and gross unfairness was concealed from them so as to enable the said plaintiff in error to induce the said Supreme Court to overstep the limits of its jurisdiction; and thereupon said Supreme Court on the 27th of June, 1872, made, in pursuance of said last-mentioned motion, the following order, to wit:

And in the same court on the 27th day of June, A. D. 1872, on this day came on to be heard the motion of appellant to amend the judgment entered in this cause on the 17th of June, 1872, which judgment on rehearing reversed and remanded the cause; and the same being considered, it is ordered by the court the said judgment be amended to read as follows: ‘this cause came on to be heard on the transcript of the record, and the same being inspected because it is the opinion of this court that there was error in the judgment, it is considered adjudged and ordered that the judgment of the court below be reversed and the cause dismissed, and the appellees pay all costs in this behalf expended, and this decision be certified below for observance.’

And your petitioners respectfully show to the court that the said last-mentioned order is not, in any sense, a judgment of this court, in that part thereof which assumes to dismiss the suit of Basse & Hord against the City of Brownsville, in Calhoun county; and that the said Supreme Court had no jurisdiction to make such an order of dismissal; and that the appellate power of said Supreme Court did not extend beyond the power and jurisdiction of the District Court from which the appeal or writ of error was taken; and that said District Court had no power or jurisdiction to dismiss said cause upon a verdict of the jury in favor of the plaintiffs; that most of the objection made by said Supreme Court to the title of the plaintiffs could have been cured by amendment or additional testimony; that the plaintiffs may have had many other defenses to the assumed title of the defendant in the District Court which he had a right to present on a new trial; and that to presume upon a partial presentation of the facts that said plaintiff had not any new evidence, and therefore to prevent his having an opportunity of producing it upon a new trial is, of course, a proceeding unfounded in law, unworthy of this court, wholly beyond its jurisdiction, and destructive of the rights of property of litigants.

Wherefore your petitioners by this motion and petition apply to this court to direct that the said last-mentioned order, professing to dismiss the cause absolutely, be reformed by striking out such dismissal, or that this court direct that a mandate issue under the original judgment directing a new trial in the District Court of Calhoun county in this cause, in accordance with the usual practice in this court.”

W. G. Hale, for the motion.

Hancock, West & North, against the motion.

This is a motion filed by the defendants in error to reform a judgment of this court rendered at the December Term, 1871. This case will be found in 36 Texas, p. 461. A motion like this can only be entertained after the close of a term, upon the ground that the judgment thus sought to be set aside is an absolute nullity from the total want of jurisdiction of the court over the subject-matter or persons, or from its absolute want of power to enter the judgment assailed. If the court has jurisdiction of the action and power to enter the judgment complained of, it matters not how informal and irregular the proceedings may be, nor how erroneous and even unjust the judgment may be, the court loses all control over it with the close of the term, and cannot alter, reform, correct, or annul it. Authorities in support of this proposition are superfluous.

And this rule applies with the same force to appellate tribunals, like this court, as to courts of original jurisdiction.

An examination of the report of this case in 36 Tex., 461, and of the record and briefs, will disclose that this was an action of trespass to try title, brought by the defendants in error against the plaintiffs in error, in which the former, under the instructions of the lower court, obtained a verdict and judgment for the recovery of the land. The cause was properly before the District Court. No objection is taken on that score.

The case was then regularly brought before this court by writ of error, upon the questions of fact as well of law. It was elaborately argued and briefed; and, after a full consideration of the merits of the cause, this court decided that the papers, deeds, facts, &c., constituting the claim of the defendants, gave them not the slightest shadow of title to the land in controversy. The court thereupon reversed the judgment of the District Court, and remanded the cause to be proceeded with in accordance with these views.

The defendants in error moved for a rehearing, and, in support of that motion, filed elaborate briefs, discussing the merits of their claims to the land in controversy.

The court considered that motion, and the motion filed by the plaintiffs in error to reform the original judgment of reversal, adhered to its previous views on the merits of the controversy, but dismissed the cause.

It is this order of dismissal which this motion seeks, after the lapse of three years, to reform, and the only question which can at this stage be considered is, whether this court had the power and jurisdiction to dismiss the action, a verdict having been returned for defendant in error, and not whether that course was irregular or improvident.

It is true that this court does not generally reverse and render, and it is equally true that it does this reluctantly when the judgment to be reversed was entered in the District Court upon the verdict of a jury; but it is too late at this time to question the power of this court to render a judgment non obstante veredicto, even if this power could have at an earlier day been questioned.

In Sydnor v. Chambers, Dallam, 601, this court, in a case where a verdict and judgment had been rendered in favor of a plaintiff, reversed the judgment of the lower court and dismissed the action.

In Land Commissioners v. Riley, 3 Tex., 237, a verdict and judgment for a plaintiff were again set aside and the action dismissed. And Chief Justice Hemphill, in delivering the opinion of the court, uses the following language: “At the decision of the former appeal it was supposed that the appellee might possibly be able to establish his claim, * * * and this induced the award of a new trial instead of a reversal and dismissal of the cause.” These words show that this court prefers to remand rather than to finally dispose of a case, in order that losing parties, by proper amendments and new evidence, may establish their rights; but where the pleadings and evidence satisfy this court that a party who has obtained a verdict has no rights and can have none, this court certainly has the power to so declare, and it has done so whenever a proper case was presented.

In Love v. Doak, 5 Tex., 343, a verdict was again disregarded and the action dismissed. Chief Justice Hemphill, delivering the opinion in that case, says: “Were there any probability that a written acknowledgment of the justice of the claim at any time within...

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  • Morrow v. Corbin
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    • Texas Supreme Court
    • June 24, 1933
    ...Southern Casualty Co. v. Fulkerson (Tex. Civ. App.) 30 S.W.(2d) 911; Yount v. Fagin (Tex. Civ. App.) 244 S. W. 1036, 1040; Brownsville v. Basse, 43 Tex. 440, 449; Ex parte McKenzie, 115 Tex. Cr. R. 315, 29 S.W.(2d) 771; Ex parte Armstrong, 110 Tex. Cr. R. 362, 8 S.W.(2d) 674; Farmers' Nat. ......
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    ...jurisdiction is defined to be the power and authority to rehear and redetermine cases which have been tried in inferior courts. Brownsville v. Basse, 43 Tex. 440;Waters-Pierce Oil Co. v. State, 107 Tex. 1, 106 S. W. 326;State v. Smith, 104 Mo. 419, 16 S. W. 415. ‘The Supreme Court has no or......
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    ...the Constitution, were alone charged with the power and authority to pass upon such claims. See opinion of this court in City of Brownsville v. Basse, 43 Tex. 440-449; Constitution of Texas, art. 5, §§ 1-18; article 2241, c. 2, tit. 40, Vernon's Sayles' Tex. Civ. Stats. 1914; Acts 1917, c. ......
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