Fulton v. Finch

Decision Date24 May 1961
Docket NumberNo. A-8134,A-8134
Citation346 S.W.2d 823,162 Tex. 351
PartiesC. E. FULTON et al., Relators, v. Hon. Delos FINCH, District Judge, et al., Respondents.
CourtTexas Supreme Court

James R. Warncke, San Antonio, for relators.

Beckmann, Stanard, Wood & Vance, San Antonio, Richard Keene, San Antonio, for respondents.

NORVELL, Justice.

C. E. Fulton, individually and as next friend for his minor son, Robert Fulton, and Arthur L. Knutson, individually and as next friend of his minor son, Charles Knutson, as relators, have applied for an original writ of mandamus to require the Honorable Delos Finch, Judge of the 73rd Judicial District Court of Bexar County, sitting in the 57th District Court of said County, to proceed to trial in a certain cause numbered F-121,917, styled C. E. Fulton et al. v. Margaret Joan Biasiolli which is said to be pending on the docket of the 57th District Court. The presiding judge of the Bexar County district courts is also made a party to this action, as well as the defendant in the district court action, Margaret Joan Biasiolli. It appears that since the institution of the suit in the district court, Margaret Joan Biasiolli has married John W. Burns and he is a party respondent in the present cause. The statutory authority relied upon as supporting the requested action by this Court is Article 1734, Vernon's Ann.Tex.Civ.Stats. 1 which is similar in wording to Article 1824 relating to the Courts of Civil Appeals. 2

The District Judge, as a defense to the requested writ, asserts that the cause in the district court has been terminated by the rendition of a final judgment. This view was accepted by the Court of Civil Appeals upon its consideration of an application for writ of mandamus based upon Article 1824. See, Fulton v. Finch, District Judge, Tex.Civ.App., 338 S.W.2d 478.

We regard the order relied upon by the District Judge as being void upon its face and wholly ineffective. It should hence be disregarded, and it follows that the cause now stands upon the docket of the District Court as a pending case which the District Judge should proceed to try. Involved in our decision is an evaluation of the various steps taken in the District Court in the light of the requirements of the Texas Rules of Civil Procedure, notably Rules 5 and 329-b. The disputed order or judgment sets forth the history of the various actions taken in regard to motions made after the rendition of the original judgment in the District Court and for that reason the pertinent parts thereof are set forth in the margin. 3

The following dates (all of which took place in 1960) are of importance in considering the authority of the District Judge to render the disputed order:

April 4,-Final judgment unfavorable to Fulton and Knutson, (plaintiffs in the trial court and relators here) was rendered by Honorable C. K. Quin, Judge of the 57th District Court.

April 13,-Motion for new trial filed by Fulton and Knutson. This action was taken within the 10-day period prescribed by Rule 329-b.

April 28,-Fulton and Knutson filed an amended motion for new trial. This action was taken within the 20-day period prescribed by Rule 329-b.

June 9,-Honorable Delos Finch acting as Judge of the 57th District Court because of the illness of Judge Quin, granted a new trial. This action was taken within the 45-day period prescribed by Rule 329-b.

June 10,-Defendant Margaret Joan Biassiolli filed a motion to set aside the order granting a new trial.

June 12,-the 45-day period from the date of the filing of the amended motion for new trial expired.

June 16,-Judge Finch entered an order which purported to set aside the order granting a new trial and reinstated the original judgment of April 4, 1960.

June 20,-Fulton and Knutson filed a motion in the nature of a motion for new trial asserting that the order of June 16 was null and void.

June 27,-Judge Finch overruled the above motion.

We are unable to agree with the construction of Rule 329-b which was adopted by the Court of Civil Appeals. Section 3 of such rule provides that all original and amended motions must be determined within forty-five days. The last judicial action taken during the forty-five day period which began on April 28 (the date of the filing of the amended motion) was the granting of a new trial. No further action was taken during such forty-five day period so that at the end thereof-on June 12,-the case stood upon the docket for trial. The order of June 16 does not purport to be a judgment entered after another trial. It attempts to set aside the motion granting a new trial, and reinstate the judgment of April 4, an action tantamount to overruling plaintiffs' amended motion for new trial some 49 days after it was filed. Under the circumstances of this case, the trial court's action in granting a new trial and then setting it aside violates the provisions of Rule 5 which expressly says that a court 'may not enlarge the period for taking any action under the rules relating to new trials or motions for rehearing except as stated in the rules relating thereto * * *.'

Rule 329-b is the rule relating to new trials and the action of the trial court in attempting to set aside the order granting a new trial was not taken in conformity therewith. The trial court's original judgment, dated April 4, was against plaintiffs Fulton and Knutson. The trial judge by his order of June 16 sought to reinstate that judgment. In A. F. Jones & Sons v. Republic Supply Co., 151 Tex. 90, 246 S.W.2d 853, 855, this Court said, 'The trial court certainly could not, on its own initiative, make any effective order affirming its former judgment and thereby extend the period for perfecting an appeal.'

The purpose of the 1941 Rules of Procedure was to provide judges and practicing attorneys with simply stated directions relating to court procedures. Insofar as new trials are concerned, definite periods of time are prescribed in which certain actions are to be taken. All district courts now have continuous terms, Article 1919, Vernon's Ann.Tex.Civ.Stats. Many of our district courts, including those in Bexar County, have two terms per year, each being for a period of six months. See, Apportionment statute, Article 199, Vernon's Ann.Tex.Civ.Stats. The time within which actions are to be taken and powers are to be exercised are now largely controlled by specific rules. It would be difficult to select plainer wording than that contained in Rule 329-b, § 3, 'All motions * * * must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, * * *.' Here, the amended motion was determined within 45 days. It cannot be undetermined after the 45-day period without destroying the rule. While there is a thirty-day provision contained in Rule 329-b, § 5 relating to judgments and orders overruling motions for new trial, 4 there is no provision which can be construed as extending a trial judge's authority over a motion granting a new trial for an additional thirty-day period. An order granting a motion for new trial must be set aside, if at all, within the 45-day period set out in Rule 329-b, § 3. It was not the intention of the rule that an order granting a motion for new trial should remain open to countermand until a term of court which might be of six month's duration should finally expire.

The respondents by counterpoint urge that even though the order of June 16 be ineffective and void, mandamus will not lie because the relators have, or at one time had, an adequate remedy by way of appeal to the Court of Civil Appeals and thence to this Court by writ of error. A judgment which discloses its invalidity upon its face anywhere at any time is a nullity and may be disregarded anywhere at any time. The present order, having been rendered after the expiration of a period of time prescribed by the Rules of Civil Procedure, is similar to an order entered out of term time. It has no efficacy and could have been ignored by the District Judge as it constituted no impediment to his proceeding with a re-trial of the case. While it is wholly unnecessary to appeal from a void judgment, it is nevertheless settled that an appeal may be taken and the appellate court in such proceeding may declare the judgment void. There is some similarity in this respect between a void order and an interlocutory order from which there is no statutory right of appeal.

In McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265, this Court held as a matter of fundamental error that the Court of Civil Appeals and this Court were without power to review an interlocutory order of a trial court in the absence of appropriate statutory provision. We held, however, that this Court was authorized to declare the interlocutory nature of the order and dismiss the appeal.

Similarily, in Jones v. Bass, Tex.Com.App., 49 S.W.2d 723, 724, which related to a void order, it was held that:

'The Court of Civil Appeals (33 S.W.2d 199) erred in its conclusion that it was without jurisdiction to set aside the void order of December 14, 1929. 'It is true,' says Judge Brown, in Williams v. Steele, 101 Tex. 382, 108 S.W. 155, 157, 'that, when the court in which a judgment has been rendered has not jurisdiction, the appellate court has not power to do that which the trial court could not do; but it has authority and jurisdiction over the void proceedings to declare their invalidity and set them aside'-citing Roy v. Whitaker (Tex.Civ.App.) 50 S.W. 491, 498; Gray v. Maddox, 5 Tex. 528; Aycock v. Williams, 18 Tex. (392) 395. To the same effect is the decision in Leslie v. Griffin (Tex.Com.App.) 25 S.W. (2d) 820.'

There seemingly is no case holding that because a void judgment may be so declared on appeal the statutory remedy of mandamus provided for by Articles 1734 and 1824, Vernon's Ann.Tex.Civ.Ststs. is unavailable. Undoubtedly the remedy set forth in the articles...

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