Consolidated Furniture Company v. Kelly

• Decision Date: 03 April 1963
• Docket Number: No. A-9204,A-9204
• Citation: 366 S.W.2d 922
• Parties: CONSOLIDATED FURNITURE COMPANY, Inc., et al., Petitioners, v. Marion Lee KELLY, Respondent.
• Court: Texas Supreme Court

Page 922

366 S.W.2d 922

CONSOLIDATED FURNITURE COMPANY, Inc., et al., Petitioners, v. Marion Lee KELLY, Respondent.

No. A-9204.

Supreme Court of Texas.

April 3, 1963.

Rehearing Denied May 8, 1963.

The Kempers, John D. Richardson, Houston, with firm for petitioners.

Richard Powell and Paul Tucker, Houston, for respondent.

STEAKLEY, Justice.

The Court of Civil Appeals dismissed this appeal for want of jurisdiction because Petitioners' appeal bond was filed more than thirty days after Petitioners original motion for new trial was overruled by operation of law. The dismissal rested principally on the holding that Petitioners' amended motion for new trial filed July 10, 1961, was, in effect, a nullity because it was not filed 'by leave of the court' as provided in Rule 329b, Sec. 2, Texas Rules of Civil Procedure, Vernon's Ann.Civ.St. It was recognized by the Court of Civil Appeals that the appeal bond was timely filed in relation to the time when Petitioners' amended motion for new trial was overruled by operation of law. 358 S.W.2d 956.

Respondent invokes Rule 329b to sustain the dismissal of the appeal by the Court of Civil Appeals on the basis of three contentions: that leave to file the amended motion for new trial was not sought or obtained by Petitioners; that Petitioners did not discharge the duty of presenting the amended motion to the trial court; and that Petitioners altered their motion for new trial after filing by replacing and adding several pages, the effect of which was the filing of a second amended motion for new trial not permitted by the Rule, and, in addition, that the original amended motion was thereby rendered incapable of reconstruction and hence was ineffective to establish the date from which the amended motion for new trial was overruled by operation of law.

The judgment for Respondents based on the jury verdict was rendered and signed on June 12, 1961. Petitioners filed a motion for new trail on June 20. There appears in the transcript under one blue cover labeled 'Defendants' Amended Motion for New Trial,' a document of fifteen pages bearing on the blue cover a marked out stamped file mark reading 'Filed July 10, 1961 at 4:55 P.M. s/ Jane Whatley, Clerk District Court, Fort Bend Co., Texas,' and an additional stamped file mark identical with the other except the time of filing is 'at 8:30 P.M.,' and which is not marked out. There also appears in handwriting above the two file marks '8:30 P.M. filed-July 10 1961 Jane Whatley, Dist. Clk.' The above document does not recite that it was filed by leave of the court and Petitioners do not controvert the fact that leave of the court was not sought or obtained prior to the filing.

(1) We approach the problems thus presented in the light of the principles reaffirmed by this Court in Hunt v. Wichita County Water Improvement District No. 2, 147 Tex. 47, 211 S.W.2d 743, 'that both the statutes or rules prescribing the steps for appealing and the record before the court will be liberally construed in favor of the right of appeal.'

In W. C. Turnbow Petroleum Corp. v. Fulton, 145 Tex. 56, 194 S.W.2d 256, the failure to obtain leave of court to file an amended motion for new trial was held to be an irregularity which was cured by the action of the trial court in entertaining and acting on the amended motion. In the instant case the irregularity was not 'cured' since the motion was not entertained or acted on by the trial judge. Assuming at this point that the amended motion for new trial filed on July 10 was otherwise in order as a first amended motion for new trial, the question thus squarely presented is whether an amended motion for new trial carrying the irregularity of not having been filed with leave of court, and not receiving consideration or ruling by the trial judge, is, notwithstanding, a subsisting amended motion subject to the provisions of Rule 329b with respect to its overruling by operation of law; if so, and as correctly stated by the Court of Civil Appeals, we are eliminating the requirement of leave of the court from the rule insofar as noncompliance therewith will result in a fatal jurisdictional infirmity.

(2) This we do. The filing of an amended motion for new trial within the time provided by Rule 329b is a matter of right and it would be an abuse of discretion for the court to deny leave for its filing. This Court in Connell v. Chandler, 11 Tex. 249, 253, spoke of an amended pleading filed without leave as being an irregularity but not one 'as should deprive a party of his right. It is the right of a party to amend, subject only to the qualification that the amendment be proper and in proper time. The leave of the court is a matter of course. The only object is to give notice of the amendment. Its omission-the frequent result of inadvertence in the preparation of the amendments-should not deprive a party of the benefit of his amendment, unless the omission has been the occasion of surprise or prejudice to the opposite party.' There is no claim of surprise or prejudice to the oposite party here in the fact alone that leave of court was not...