Foster v. Bourgeois

• Decision Date: 12 March 1924
• Docket Number: (No. 4035.)
• Citation: 259 S.W. 917
• Parties: FOSTER v. BOURGEOIS.
• Court: Texas Supreme Court

259 S.W. 917

FOSTER v. BOURGEOIS.

(No. 4035.)

Supreme Court of Texas.

March 12, 1924.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by Mrs. Minnie L. Bourgeois against W. M. Foster. From a judgment for plaintiff, defendant appealed to the Court of Civil Appeals, which affirmed the judgment (253 S. W. 880), and defendant brings error. Affirmed.

S. P. Ross and Bryan & Maxwell, all of Waco, for plaintiff in error.

Witt, Terrell & Witt, of Waco, for defendant in error.

GREENWOOD, J.

This was an action for damages for malicious prosecutions, brought by defendant in error against plaintiff in error, resulting in a judgment for defendant in error for $2,000 actual damages and $8,000 exemplary damages. On appeal by plaintiff in error, the honorable Court of Civil Appeals affirmed the judgment of the trial court, after refusing to consider assignments of error based on certain bills of exceptions.

The term of court at which the case was tried continued more than 8 weeks. The trial court, by proper orders, extended the time for filing the bills of exceptions for 70 days in addition to the 30 days allowed by law. The decree adjudging that defendant in error recover from plaintiff in error $10,000 with interest and costs was rendered and entered on November 8, 1921. Plaintiff in error's motion for new trial was overruled December 22, 1921. The bills of exceptions were filed on April 1, 1922, more than 100 days after the date of the judgment but within 100 days after the date of the order overruling the motion for new trial. The ruling of the Court of Civil Appeals was that the 30 days allowed by article 2073 of the Revised Statutes ran not from the rendition of the order overruling the motion for new trial, but from the rendition of the previous judgment disposing of the issues between the parties.

The writ of error was granted because the ruling was in conflict with the previous decision by the same court in the case of G., C. & S. F. Ry. Co. v. Felts, 60 Tex. Civ. App. 471, 128 S. W. 155. In that case article 2073 was construed to allow 30 days from and after the day the motion for new trial was overruled for filing a statement of facts or bills of exceptions, "because, as long as the motion for new trial was pending, there was no final judgment," and because a party should not be "required to anticipate that the court will overrule the motion." In this case the Court of Civil Appeals overruled the decision in the Felts Case, following the opinion of the Supreme Court in Cooper v. Yoakum, 91 Tex. 391, 43 S. W. 871.

The opinions of Justices Key and Blair in this case give the true construction to article 2073. The direction of the statute that the statement of facts and bills of exceptions "shall be...