Garza v. Baker

• Decision Date: 02 February 1883
• Docket Number: Motion No. 756.
• Citation: 58 Tex. 483
• Parties: LEONARDO GARZA v. J. N. BAKER AND WIFE.
• Court: Texas Supreme Court

58 Tex. 483

LEONARDO GARZA

v.J. N. BAKER AND WIFE.

Motion No. 756.

Supreme Court of Texas.

Feb. 2, 1883.

APPLICATION for mandamus. From Bexar county.

This was an application to the supreme court for mandamus, in which it was stated that Leonardo Garza, as plaintiff, on the 12th of December, 1882, recovered in the district court of Bexar county a judgment against the applicants for the restitution of certain premises, and for $250 damages; that on the 14th of December, 1882, the plaintiff filed a written motion to reform the judgment (unnecessary to be here explained), and which was overruled; that plaintiff thereupon gave notice of appeal from that portion of the judgment which related to damages, and defendants (the applicants for mandamus) gave notice of appeal from the whole of the judgment; that the applicant, on the 21st day of December, A. D. 1882, executed and delivered to the clerk a good and sufficient appeal bond, whereby he claimed that the jurisdiction of the supreme court over the case attached; that the clerk refused to make out a transcript, and the applicant obtained from a justice of the supreme court, on a showing there made, a writ of mandamus to compel the making out of that transcript; that on the 21st of December, 1882, Garza applied to the district court by motion in the case, to compel the clerk to issue a writ of restitution of the premises, which was refused; that on the 29th of December, A. D. 1882, the plaintiff Garza filed in the district court a motion to set aside the judgment in the cause, and for a new trial, which was granted on the 10th of January, 1883; that petitioner, after filing his appeal bond, made out and presented to the attorneys of Garza a statement of facts proved on the trial, who declined to sign or agree to them, and indorsed their refusal thereon, and the district judge who tried the cause declined to sign a statement of facts for reasons given, and which appear in his return. That the jurisdiction of the supreme court had then attached, by reason of the execution of the bond, etc.

The applicant stated that he was without remedy except by mandamus, which he asked, commanding the district judge to certify statement of facts proved on the trial, and to desist from further proceedings during the pendency of the appeal, etc.

The application was sworn to, and had attached to it exhibits properly certified of the proceedings referred to.

Process issued to the district judge, the attorneys, etc., requiring them to appear not later than three days after service of process, and show cause why the motion for mandamus should not be granted.

The following is the return to the writ, filed in the supreme court on the 29th of January, by the district judge:

“ To the Honorable the Supreme Court of the State of Texas:

The district judge of the twenty-second judicial district of the state of Texas, for return to the alternative writ of mandamus heretofore issued by said court against him on application made by the Bakers, says there was a case tried in the district court of the county of Bexar, wherein one Garza was plaintiff and the said Bakers were the defendants, and said cause was tried at the December term of said court, which December term is still in session.

This respondent further says, that the verdict of the jury was in favor of the plaintiff, and that afterwards plaintiff on motion sought to set aside a portion of said verdict and have a new trial on the question of damage; said motion was refused, whereupon both plaintiff and the defendants gave notice of appeal.

This respondent further says, that afterwards the plaintiff had leave to withdraw his notice of appeal. He then made a motion for a new trial, which was granted.

This respondent further says, that several days after a new trial of said cause was granted, a paper purporting to be a statement of facts in said cause was presented on the part of the defendants to this respondent for his approval; said paper was neither read or approved by this respondent, for the reason that this verdict had been set aside.

This respondent further says, that although said cause of Garza v. Bakers was tried by a jury, no motion for a new trial was ever made by the defendants.

Wherefore this respondent prays that the honorable court will make such order in the premises as shall be required by the law, and that this respondent may be hence dismissed.

G. H. NOONAN, Respondent.”

So much of the response to the writ as Garza and his attorney made, which it is deemed proper to refer to, was as follows:

?? On December 12, 1882, judgment was rendered for respondent Garza, and against relators, for restitution and for $250 damages; that respondent Garza, considering the verdict erroneous as to the damages, having vainly moved at the time of its rendition to have it corrected by the jury, again moved to have the finding “as to the damages” only set aside. That the district court, holding the verdict to be indivisible, declined to set it aside in part, and on December 16, 1882, overruled respondent's motion; that respondent then moved under arts. 2454 and 2462, that a writ of restitution issue, which motion the district court overruled on December 26, 1882; that respondent being denied all relief he deemed himself entitled to under the statute, which he had been told provided a “speedy” remedy, then with leave of court amended his original motion for a new trial, and moved to set aside the verdict in toto, as well as also the judgment, which motion was granted by the district court on January 10, 1883, the term of said court not having yet expired. The district court, in the opinion of respondent, has control of its judgment until the close of the term and that respondent Garza should not be debarred of his right to have the verdict and judgment set aside directly on his motion before the court of original jurisdiction, instead of being compelled to seek that same relief indirectly by an expensive and perhaps not speedily determined appeal to this court….Bethel Copewood and Ogden & Ogden, for the motion.

No case will be found where the successful party has pressed his right to have the judgment executed till he has compelled the defeated party to perfect his appeal by filing an appeal and supersedeas bond, and has then been permitted to have the judgment set aside to defeat the appeal against the will and consent of the appellant.

The jurisdiction of this court fully attached on the filing of the bond, and the statute provides no other or further step in the district court to maintain it.

Was not that jurisdiction the power to hear and fully determine the cause on appeal? If so, by what law has the court a quo acquired the power to divest it and render it nugatory? Withers v. Patterson, 27 Tex., 491.

The statute, as it was aforetime, provided for the execution to issue after the rising of the court. Pasch. Dig., art. 3772. Article 2268, R. S., provides that “after the expiration of twenty days from and after the rendition of final judgment in the district or county court, and after the overruling of any motion therein for a new trial or in arrest of judgment, if no supersedeas bond or appeal or writ of error has been filed and approved, the clerk shall issue execution upon such judgment upon the application of the successful party.”

If the rule that the judgment is in the breast of the judge till the court rises still applies, then we have the strange fact of execution issuing upon, and levy and sale satisfying perhaps a judgment not final, but still in fieri, and which may never be a final judgment....