Dallas Storage & Warehouse Co. v. Taylor, 5939.

• Decision Date: 31 December 1934
• Docket Number: No. 5939.,5939.
• Parties: DALLAS STORAGE & WAREHOUSE CO. et al. v. TAYLOR, District Judge, et al.
• Court: Texas Supreme Court

77 S.W.2d 1031

DALLAS STORAGE & WAREHOUSE CO. et al. v. TAYLOR, District Judge, et al.

No. 5939.

Supreme Court of Texas.

December 31, 1934.

Original petition for mandamus by the Dallas Storage & Warehouse Company and others against Hon. W. M. Taylor, District Judge, and others.

Application for writ of mandamus refused.

Bartlett, Thornton & Montgomery and Lee G. Carter, all of Dallas, for relators.

Worsham, Rollins, Burford, Ryburn & Hincks, Horace C. Williams, Autry Norton and W. M. Taylor, all of Dallas, for respondents.

SMEDLEY, Commissioner.

Relators seek the issuance of a writ of mandamus to compel respondent, W. M. Taylor, special judge of the Fourteenth judicial district court of Dallas county, to hear and determine their amended motion for new trial filed in a suit in said court in which relators were defendants and respondent Lipscomb was plaintiff.

The civil district courts of Dallas county are among those courts in which the rules of practice and procedure are prescribed by article 2092, Revised Civil Statutes of 1925, as amended by chapter 70, Acts of the 5th Called Session of the Forty-First Legislature 1930, p. 227 (Vernon's Ann. Civ. St. art. 2092).

A verdict was returned September 10, 1930. Relators filed on September 19, 1930, a motion to set aside the verdict. On September 20, 1930, judgment was rendered for respondent Lipscomb. Relators on September 26, 1930, filed a motion to set aside the judgment and grant them a new trial. The trial court on April 4, 1931, granted relators leave to file an amended motion for new trial, and the motion was filed on the same day. When the amended motion for new trial came on to be heard on April 10, 1931, respondent Lipscomb filed a motion to strike the same; and the trial court thereupon entered an order overruling the motion to strike and also overruling the amended motion for new trial. The next day, however, the trial court set aside the order of April 10, 1931, overruling the amended motion for new trial, and held that it was without power to pass upon such motion. There was no agreement of the parties extending the time for the presentation, or for the decision, of the original motion, or of the amended motion.

This is one of three causes submitted at the same time and this day decided, presenting questions as to the correct construction of article 2092, and particularly its subdivision 28 as amended (Vernon's Ann. Civ. St. art. 2092, subd. 28); the other two causes being Independent Life Insurance Company of America v. T. A. Work, District Judge, et al. (Tex. Sup.) 77 S.W.(2d) 1036, and Millers Mutual Fire Insurance Company of Texas v. Wilkerson et al. (Tex. Sup.) 77 S.W.(2d) 1035.

Relators contend that the provisions of subdivision 28, even after its amendment, and of subdivision 29 (Vernon's Ann. Civ. St. art. 2092, subds. 28, 29), fixing the time within which an amended motion for new trial may be filed, the time within which the motion must be presented, and the time within which it must be determined, are directory; that, after an original motion for new trial has been filed within the statutory period, the jurisdiction of the court over the case and over the judgment continues as long as such motion is undisposed of by order of the court, and that the court has the power to hear and determine an amended motion for new trial, even though it is not filed and not presented until after the expiration of 45 days from the filing of the original motion. They rely upon Townes v. Lattimore, 114 Tex. 511, 272 S. W. 435; Diamond Ice & Cold Storage Co. v. Strube, 115 Tex. 515, 284 S. W. 935; and Nevitt v. Wilson, 116 Tex. 29, 285 S. W. 1079, 48 A. L. R. 355.

The contention of respondents is that the amendment of subdivision 28 was designed to change, and did change, the rule laid down in the cases above cited, and that, since that amendment became effective, a motion for new trial, whether original or amended, must be presented within 30 days from the date of its filing, and must be determined within 45 days from the date of its filing, and that, if the motion is not so presented or is not so determined, it is overruled by operation of law at the expiration of the period fixed by the statute.

In our opinion, respondents' construction of the amended statute is correct. It is necessary, in construing the statute, that subdivision 28 as amended, subdivision 29, and subdivision 30 (Vernon's Ann. Civ. St. art. 2092, subds. 28-30) be read together and careful consideration given to the purpose of their various provisions, and particularly to the change intended to be accomplished by the amendment.

Subdivision 28, prior to its amendment, was as follows: "A motion for new trial filed during one term of court may be heard and acted on at the next term of court. If a case or other matter is on trial or in process of hearing when the term of court expires, such trial, hearing or other matter may be proceeded with at the next term of the court. No motion for new trial or other motion or plea shall be considered as waived or overruled, because not acted on at the term of court at which it was filed, but may be acted on at the succeeding term or at any time which the judge may fix or to which it may have been postponed or continued by agreement of the parties with leave of the court. All motions and amended motions for new trials shall be presented within thirty days after the original motion or amended motion is filed and shall be determined within not exceeding forty-five days after the original or amended motion is filed, unless by written agreement of the parties filed in the case, the decision of the motion is postponed to a later date." (Italics ours.)

This subdivision was amended by chapter 70, Acts 5th Called Session, 41st Legislature 1930, which became effective 90 days after March 20, 1930 (Vernon's Ann. Civ. St. art. 2092, subd. 28). The amendment rewrote the entire subdivision, but it made no change in its language except to substitute for the word "shall," twice appearing in the original section and italicized in the foregoing quotation of the section, in each instance the word "must." So that the section as amended, instead of providing that the motion shall be presented within 30 days and shall be determined within 45 days, now provides that the motion must be presented and must be determined within such periods.

The emergency clause (section 2) throws further light upon the change intended to be made. It is: "The fact that the Supreme Court of Texas in the cases of Townes v. Lattimore, 114 Tex. 511 , and Nevitt v. Wilson, 116 Tex. 29 [285 S. W. 1079, 48 A. L. R. 355], has held that the present Statute is merely directory, and since no time limit within which motions for new trial may be filed and determined, creates an emergency," etc.

From the change of the word "shall" to "must" and from the recitals in the emergency clause, it unmistakably appears that the Legislature intended to make mandatory rules which, as it interpreted the two decisions referred to in the emergency clause, had theretofore been held to be but directory, and intended to fix definite limits of time for the presentation and determination of motions for new trial, in order to expedite the final disposition of causes in the trial court.

Subdivision 29 provides that a motion for new trial shall be filed within 10 days after the judgment is rendered, and "may be amended by leave of the court at any time before it is acted on within twenty days after it is filed." By the terms of subdivision 30, the judgment becomes "as final after the expiration of thirty days after the date of judgment or after a motion for a new trial is over-ruled as if the term of court had expired." This language has been construed and applied as making the judgment final, and fixing the end of the term as far as the immediate case is concerned, at the expiration of 30 days from the date of judgment or after a motion for new trial is overruled. Pierce Co. v. Watkins, 114 Tex. 153, 263 S. W. 905; Nevitt v. Wilson, 116 Tex. 29, 37, 285 S. W. 1079, 48 A. L. R. 355.

A statute which like this permits a motion filed at one term to be heard and determined at another, and which makes the judgment final only when 30...