Fitzgerald v. Lane

• Court: Texas Court of Appeals
• Writing for the Court: Funderburk
• Citation: Fitzgerald v. Lane, 126 S.W.2d 64 (Tex. App. 1939)
• Decision Date: 20 January 1939
• Docket Number: No. 1875.,1875.
• Parties: FITZGERALD et al. v. LANE et al.

126 S.W.2d 64

FITZGERALD et al. v. LANE et al.

No. 1875.

Court of Civil Appeals of Texas. Eastland.

January 20, 1939.

Rehearing Denied March 17, 1939.

Appeal from District Court, Marion County; R. H. Harvey, Judge.

Action by Haskell Fitzgerald and another against H. E. Lane and others brought in county court, to set aside the judgment and orders entered in a guardianship proceeding, as ineffectual to pass title to the plaintiffs' undivided interest in certain realty, which, on appeal to district court, was consolidated with action brought in district court by Haskell Fitzgerald and another against H. E. Lane and others in trespass to try title to the realty. From an adverse judgment, the plaintiffs appeal.

Affirmed.

Shelburne H. Glover, of Jefferson, for appellants.

W. B. Chauncey, of Wichita Falls, for appellees.

FUNDERBURK, Justice.

The mother of Haskell and Perry Fitzgerald, as their guardian, undertook to sell their interest in a certain 43-acre (more or less) tract of land. Within less than two years after Perry Fitzgerald, the younger of said wards, became 21 years of age, an action in the nature of a bill of review was by them filed in the County Court where the guardianship was pending. The purpose of such action was to set aside the judgment of the court and all of the orders entered in the guardianship proceeding as void and ineffectual to pass any title out of said wards to their one half undivided interest in said land. The guardian and purchasers of the property were made defendants in said action, and upon the trial thereof, on September 11, 1937, judgment was rendered for said Haskell and Perry Fitzgerald canceling and setting aside all the orders, judgments and decrees in said guardianship proceeding. The defendants appealed to the District Court, superseding the judgment by a supersedeas bond. Haskell and Perry Fitzgerald, in addition to said action in the county court, filed an original suit in the district court, being an action in trespass to try title to said land against the same defendants. In District Court these two actions were consolidated. Upon the trial the issues were submitted to a jury and found in favor of the defendants. Upon such verdict judgment was rendered accordingly, from which this appeal is prosecuted by plaintiffs.

Haskell and Perry Fitzgerald, subsequently to becoming of age, executed a ratification of an oil and gas lease covering the land in question to Phillips Petroleum Company and Ed S. Holman. Because of this transaction, the last named parties were not made parties to the suit, the subject matter of the suit being the land, subject to the lease and the royalty. The ratification agreement expressly reserved any right or cause of action against any other person, firm or corporation than said lessees. The trial court overruled the motion of plaintiffs for a judgment non obstante veredicto, and sustained a motion of defendants for judgment in their favor.

In reply to appellants' brief, and preliminary to an answer thereto on the merits, appellees make this statement: "We believe that this court is without jurisdiction in this case for the reason that there is no order of the trial court overruling or acting upon appellants' motion for a new trial nor is it shown that appellants gave notice of appeal and under the decisions of the courts of this state it is necessary to show this in order to give the appellate court jurisdiction." Appellees' brief furnishes us no assistance in the determination of the important question so suggested. The only reply of appellants thereto is that they "respectfully submit that there is no merit to the above contentions of appellees. The record discloses that all things necessary to be done were done in order to give this court jurisdiction." The very statement of the question suggests that it is more important than its treatment by counsel would seem to imply.

The law provides as to motions for new trial: "Each such motion shall: * * * 3. Specify each ground on which it is founded, and no ground not specified shall be considered. 4. Be determined at the term of the court at which it is made." R.S. 1925, Art. 2232. Another statutory provision is: "An appeal may, in cases where an appeal is allowed, be taken during the term of the court at which the final judgment in the cause is rendered by the appellant giving notice of appeal in open court within two days after final judgment, or two days after judgment overruling a motion for a new trial, which shall be noted on the docket and entered of record" etc. R.S.1925, Art. 2253, Vernon's Ann.Civ.St. art. 2253.

It is a proposition so elementary as to require no citation of authority that the giving of the required notice of appeal is essential to the exercise of jurisdiction by the appellate court.

The record of the judgment shows that notice of appeal was given. It is shown by the transcript that a motion for new trial was timely filed, but there is no showing of any action of the court upon such motion. There is, therefore, necessarily absent any notice of appeal, other than that just mentioned, given during the same term of court as that in which the judgment was rendered and in which the motion for new trial was filed.

The jurisdictional question suggested poses this further question: Under said Art. 2253, above quoted, if a party gives notice of appeal "within two days after final judgment" and thereafter, during the same term, files a motion for new trial which is overruled, is it necessary to give any further notice of appeal? Although there may be some dicta to the contrary, it is our considered opinion that no additional notice of appeal under such circumstances is required. It would seem to be a fair interpretation of the statute that it means literally what it says, namely: That notice of appeal is to be given "within two days after final judgment or [not and] two days after judgment overruling a motion for a new trial." (Italics ours.) By analogy, it may be pointed out that conclusions of fact and law, in order to be reviewable upon appeal, must be excepted to. But it is held that an exception to the judgment meets that requirement. The judgment, of course, is presumptively rendered and entered before conclusions of fact and law are filed. When judgment in a case is rendered that is the judgment from which the appeal, if any, must be prosecuted. An appeal is not prosecuted from an order overruling a motion for a new trial. "An order granting or refusing a new trial is interlocutory in nature and not appealable." 31 Tex.Jur. 189 sec. 177. The filing of a motion for a new trial, unless and until granted, does not affect the finality (in the sense of appealability) of the judgment. Golden Rod Oil Co. v. Golden West Oil Co., Tex.Com.App., 293 S.W. 167; City of Abilene v. American Surety Co., Tex.Civ.App., 73 S.W.2d 616.

But even if we should be wrong in the above conclusion broadly stated as applicable to a case where a new trial is actually heard and overruled during the term, which there is opportunity to give notice of appeal, it would not necessarily follow that we are without jurisdiction in the instant case, there having been no order overruling the motion for new trial, and therefore, necessarily, of course, no opportunity to give notice of appeal during the same term of court within two days after such action. The above mentioned statute by its very terms could not apply to such a state of facts. For a somewhat similar situation arising under other particular statutory provisions in which it was held that no notice of appeal was required after a motion for new trial was overruled (by operation of law), see Houston Life Ins. Co. v. Dabbs, 125 Tex. 100, 81 S.W.2d 42.

Our investigation of the question just discussed suggests a more difficult question involving a limitation upon our jurisdiction which, being of a fundamental nature, also requires consideration and determination. That question is: Should the motion for new trial be regarded as having been overruled by operation of law, thereby preserving appellants' right to a review on appeal of all the grounds of error set forth in the motion for new trial and, under amended rule 71a (126 Tex. vii, 99 S.W.2d xxx) required as a prerequisite to our authority to review same; or should the motion for new trial be considered as presumably abandoned, with the effect of limiting our authority to pass upon only fundamental errors? No clear answer to this question is to be found in statutes, or decisions of our courts. There is considerable dicta both ways, but so far as we have found our precise question here as applicable to a similar state of facts has never been decided.

In Mason v. Russel's Heirs, 1 Tex. 721, it was said: "The motion [for new trial] does not appear to have been acted on by the court below. The appellant contends, and we think justly, that as the motion was not granted, it was overruled by the operation of law. It is not, however, important, to the interest of the parties, as the most material points will arise on the face of the record. We shall consider, however, the motion for a new trial as overruled; and, if it was a case that required it, would reverse the judgment, if, in our opinion, the court below erred in doing so." (Italics ours.)

But in Sears v. Green, 1 Posey, Unrep. Cas. 727, by the old Commission of Appeals, the above decision was referred to and expressly disapproved, it being there held, as follows: "The motion for a new trial made in this case was not filed until June 6, 1874, and it does not appear to have been called to the attention of the court, and was never acted upon. We must therefore consider it as waived. It is as if it had never been made." (Italics ours.) A case many times cited is McKean v. Ziller, 9 Tex. 58. It is the leading case on the proposition that a motion for new trial (no statute providing otherwise) must be determined during the same term of court...