Cooper v. Yoakum

• Citation: 43 S.W. 871
• Parties: COOPER v. YOAKUM.
• Decision Date: 13 January 1898
• Court: Supreme Court of Texas

Page 871

43 S.W. 871

COOPER v. YOAKUM.

Supreme Court of Texas.

January 13, 1898.

Certified questions from court of civil appeals of Fourth supreme judicial district.

Action by A. G. Cooper against B. F. Yoakum. From a judgment for defendant, plaintiff sued out a writ of error to the court of civil appeals, which certified questions to this court. Opinion certified.

H. E. Vernor, Clark & Fuller, and C. S. Robinson, for plaintiff in error. Houston Bros. and Franklin & Cobbs, for defendant in error.

GAINES, C. J.

The following questions have been certified for our determination by the court of civil appeals for the Fourth supreme judicial district: "The petition for writ of error was filed on April 24, 1897. The judgment was rendered on March 9, 1896. The order overruling plaintiff in error's motion for new trial appears in the minutes of the district court, of the date April 24, 1896, and reads: `In this cause, this day, came on to be heard defendant's motion for a new trial, which motion, after being duly considered by the court, was by the court overruled, to which ruling of the court defendant in open court excepted, and gives due notice of appeal.' A motion is filed on behalf of defendant in error, in this court, to dismiss the writ of error because not sued out in time. In connection with this motion it is shown that the order was in fact made on April 22, 1896, by a certified copy of the entry of the district judge on his motion docket as follows: `Motion overruled, to which plaintiff excepts, and ten days' leave given to file statement of facts. 4/22/96.' This court finds from the evidence before it that the 22d of April, 1896, was in fact the date upon which the judge overruled the motion. (1) Should the writ of error have been sued out within twelve months from the rendition of the main judgment? (2) If not, then is the date upon which the minutes show the judgment overruling the motion for new trial to have been rendered conclusive of the date from which the twelve months allowed within which to sue out a writ of error, are to be computed?"

We are of the opinion that the first question certified should be answered in the affirmative. Section 142 of the act of May 13, 1846, "to regulate proceedings in the district court," provided that "no writ of error shall be granted after the expiration of two years from the rendition of the judgment. * * *" Pasch. Dig. art 1496. In Waterhouse v. Love, 23 Tex. 560, this statute was construed, and it was there held that under it the writ of error should have been sued out within two years from the time at which the main judgment was rendered. In this opinion, speaking of the provision quoted above,...