Cohen v. Moore

• Decision Date: 30 October 1907
• Citation: 104 S.W. 1053
• Parties: COHEN v. MOORE et al.
• Court: Texas Supreme Court

104 S.W. 1053

COHEN v. MOORE et al.

Supreme Court of Texas.

October 30, 1907.

Certified Questions from Court of Civil Appeal of Third Supreme Judicial District.

Action by M. Cohen against Minor Moore and another. Judgment for defendants, and plaintiff appeals. Questions certified to Supreme Court. Questions answered.

See 103 S. W. 422.

James E. Yeager, for appellant. R. H. Kingsbury and Tom M. Hamilton, for appellees.

WILLIAMS, J.

Certified questions from the Court of Civil Appeals for the Third District, as follows:

"M. Cohen brought this suit in the county court against Minor Moore, a justice of the peace, and Frank Warner, and alleged, in substance: That on the 14th day of March, 1906, he filed a suit in Justice Moore's court against Warner upon a note for $47.45, and to foreclose a lien on certain personal property of the value of $110; that Warner was duly cited, but failed to appear or answer; that on March 26th, which was appearance day, the justice of the peace rendered judgment by default for him (Cohen) for $47.45, and a foreclosure of his lien, and made a note on his docket to that effect, but did not enter the same in his minute book; that in the afternoon of said day, without notice to the plaintiff, and without any written motion for a new trial, said justice of the peace, upon the verbal motion of the defendant, Warner, attempted to set aside said judgment by default; that the plaintiff's attorney refused to reset said case for trial at that term of court, but that said justice of the peace, after stating to the plaintiff's attorney that he would continue the case to the next term, tried it on April 7th, at that term, in the absence and without the knowledge of the plaintiff, and allowed the defendant, Warner, to set up an unliquidated and illegal demand against said note, and rendered judgment against the plaintiff for $75 and costs of suit and canceling his note and mortgage; that on April 12th he (the plaintiff) filed his motion in said court asking that said judgment be set aside, and the judgment rendered for him against Warner for $47.45 entered upon the minutes, which motion was overruled. He alleged that the action of the justice of the peace in attempting to set aside the judgment in his favor and retry the case and render judgment against him was void, and he prayed for a writ of mandamus compelling the justice of the peace to enter upon his minutes the judgment rendered for him and issue process to enforce the same, and that the temporary injunction issued to prevent the enforcement of the judgment in favor of Warner be perpetuated. The trial court sustained a general demurrer to the petition, and the plaintiff has appealed and assigns that ruling as error.

"This court affirmed the judgment, and held that so much of the provisions of chapter 14 of title 33 of the Revised Statutes of 1895, relating to new trial in justice of the peace courts, as are applicable to the facts of this case, are directory and do not affect the inherent power of such courts to set aside judgments, even without any motion, written or oral; and that the second judgment rendered by the justice of the peace was not absolutely void; and that the plaintiff's remedy was by appeal therefrom. Our ruling in that regard is sustained by Raley v. Sweeney, 24 Tex. Civ. App. 620, 60 S. W. 573, decided by the Court of Civil Appeals for the Fourth District, in which a writ of error was refused, but it is in conflict with Smith v. Carroll, 28 Tex. Civ. App. 330, 66 S. W. 863, decided by the Court of Civil Appeals for the Fifth District. The question is material and its decision necessary.

"With this explanation and statement, the Court of Civil Appeals for the Third District, in compliance with appellant's request and with the act of the Twenty-Sixth Legislature requiring it to be done, hereby certifies to the Supreme Court for decision the question above referred to, and upon which our decision is in conflict with Smith v. Carroll, supra. The specific question is: Had the defendant Moore, as justice of the peace, the power, without a written motion asking it, and under the circumstances stated above, to set aside the judgment by default and render the second judgment? Was his action in so doing absolutely void, or only voidable?"

We answer that the justice of the peace had power to set aside the default at the time and under the circumstances stated in the certificate, and the Court of Civil Appeals correctly so held. In the case of Aycock v. Williams, 18 Tex. 392, in which it was held that the action of a justice of the peace in setting...