Gulf, C. & S. F. Ry. Co. v. Muse

Citation207 S.W. 897
Decision Date08 January 1919
Docket Number(No. 3134.)
PartiesGULF, C. & S. F. RY. CO. v. MUSE, District Judge.
CourtSupreme Court of Texas

F. J. Wren, of Ft. Worth, E. M. Browder, of Dallas, Lee Lomox & Smith, of Ft. Worth, and Terry, Cavin & Mills, of Galveston, for plaintiff.

Geo. A. Harmon and Marcus M. Parks, both of Dallas, for defendant.


The district court of Dallas county was engaged in the trial by jury of a cause, numbered 22277B, wherein H. L. Collier was plaintiff and the Gulf, Colorado & Santa Fé Railway Company was defendant, at its January term, 1917, without time to complete the trial before the expiration of the term, whereupon the presiding judge extended the term by the following order, duly entered on the minutes on March 31, 1917, to wit:

"Whereas, the trial of the above entitled and numbered cause commenced on March 19, 1917, and

"Whereas, the end of the January term, 1917, is at hand, said term ending March 31, 1917, and

"Whereas, the trial of the above numbered and entitled cause has not been concluded but is still in progress, and

"Whereas, it will take some time to conclude the trial of said cause:

"Therefore, I, E. B. Muse, the presiding judge of the Forty-Fourth district court, with the power vested in me by the statutes of the state of Texas, under article 1726, do deem it expedient and necessary that the rights of all parties may be preserved and protected, do extend the January term, A. D. 1917, of said court until the conclusion of said pending trial; the extension of said January term being intended to cover such time as necessary to finish and complete the trial of said above numbered and entitled cause, and extension of said trial will include and is intended to include the conclusion of this trial in the ordinary, legal and statutory manner, the submission of the cause to the jury, their deliberation, and finding upon same, the filing of a motion for new trial, if same becomes necessary by either party, and the action of the court upon such motions as may be necessary and become incident thereto under the statute growing out of said trial. This term is extended to include everything under the law that is necessary to be done to make a full and complete conclusion of said pending trial now in progress in this court."

On April 11, 1917, the jury returned a general verdict in favor of the plaintiff, against the defendant, for the sum of $4,000, and the verdict was duly noted on the docket.

Within two days after the verdict was rendered, the plaintiff filed a motion for a new trial, which was afterwards amended, and on June 2, 1917, the court made and entered an order finding that the motion was well taken and adjudging that a new trial be granted.

Immediately after the announcement by the court of this order, on plaintiff's motion for a new trial, the defendant, on June 2, 1917, filed a motion for a rehearing and to set aside said order, and the court directed counsel for the respective parties to submit in writing such briefs and arguments on defendant's motion as they might desire to present. In compliance with the court's direction, counsel on both sides submitted written briefs and arguments, the last being in behalf of plaintiff and being filed on September 15, 1917.

The court took defendant's motion, and the briefs and arguments thereon, under advisement until October 5, 1917, when it granted the motion by the following order, to wit:

"The court having had under advisement the motion of defendant filed herein June 2, 1917, asking for a reconsideration of, and a rehearing on, the order of this court made June 2, 1917, sustaining plaintiff's motions for a new trial and granting the plaintiff a new trial and of said motions, and said motion and the arguments of counsel for plaintiff and defendant thereon having been duly considered by the court, and the court being fully advised in the premises: Now on this date, in open court, it is ordered, adjudged, and decreed by the court that said defendant's motion for rehearing be granted and that the order at this extension of term heretofore made on June 2, 1917, granting plaintiff a new trial herein, be set aside, and held for naught, and plaintiff's original and amended motions for new trial being now fully considered, they and each of them are in all things overruled, to which ruling of the court the plaintiff H. L. Collier in open court excepted and gave notice of appeal to the Court of Civil Appeals for the Fifth Supreme Judicial District sitting at Dallas. And on motion of plaintiff, 90 days is hereby granted to plaintiff from and after this date in which to prepare and file statement of facts and bills of exception. And now by this order the said above cause being finally disposed of in this court under the extension of the January term of this court made March 31, 1917, for the completion of the trial of said cause and all orders and motions incident thereto as per the terms of said order, the said extension of said January term of this court is now here declared closed on this October 5, 1917."

The court, on the same day, viz. October 5, 1917, caused to be entered on the minutes, "as of April 11, 1917," a final judgment, in conformity with the verdict, in favor of the plaintiff and against the defendant for $4,000, with interest from April 11, 1917, at the rate of 6 per cent. per annum and all costs, for which execution was ordered to issue. Prior to October 5, 1917, no judgment had been entered on the verdict.

At the October term of the court, the plaintiff filed a motion to set said cause for trial, which was overruled, and thereupon plaintiff filed his original proceeding for mandamus against the district Judge in the Court of Civil Appeals of the Fifth Supreme Judicial District of Texas, and in said proceeding, on October 27, 1917, obtained the following judgment, to wit:

"This cause came on to be heard, the application of relator, H. L. Collier, for a writ of mandamus, to compel the respondent, Hon. E. B. Muse, judge of the Forty-Fourth judicial district, Dallas county, to proceed to trial and judgment in the case of H. L. Collier v. Gulf, Colorado & Santa Fé Railway Company, No. 22277B, now pending in said court, and the same being inspected, because it is the opinion of this court that the trial of said cause was concluded upon the granting of plaintiff's motion for a new trial by said court, that the extended term of that court thereupon ended, and all subsequent orders made in the case were without authority of law and void: It is therefore considered, adjudged, and ordered that the application be granted, and that the writ of mandamus issue, commanding the respondent to proceed to the trial of said cause No. 22277B."

On September 4, 1918, the Chief Justice of the Supreme Court, in vacation, granted a temporary writ of prohibition, directing the district judge to desist from a new trial of the cause, which he had ordered in compliance with the judgment of the Court of Civil Appeals, until this proceeding could be heard and determined by this court.

It will aid in the correct determination of the validity of the order of the trial court, setting aside its previous order for a new trial, to bear in mind the following thoroughly established principles: First, that ordinarily the jurisdiction of a court over both subject-matter and parties, once fully attached in a cause, continues until all issues both of fact and of law have been finally determined. Second, that article 1726, Rev. St., authorizes, not the calling by the district judge of a new, distinct, or independent term, but merely the continuance of the same term, so that during the period of extension under the article the court necessarily possesses the same power as during the original term. 15 C. J. 886; Bank v. Withers, 6 Wheat. 106, 5 L. Ed. 217; Keith v. Ala., 91 Ala. 2, 8 South. 353, 10 L. R. A. 432. And, third, that it is within the power of the court, at the same term, to revise or vacate any of its judgments, decrees, or orders, including orders granting new trials. Blum v. Wettermark, 58 Tex. 125; Nowlin v. Hughes, 2 Willson, Civ. Cas. Ct. App. § 313; Hume v. John B. Hood Camp Confederate Veterans (Civ. App.) 69 S. W. 643; Watson v. Williamson, 33 Tex. Civ. App. 269, 76 S. W. 794; Ry. Co. v. Hugen, 45 Tex. Civ. App. 329, 100 S. W. 1000.

It follows that, if the order vacating the award of the new trial was made before the end of the extended term, its validity is beyond question. The district judge extended the term "until the conclusion of said pending trial." The honorable Court of Civil Appeals determined that the "trial of...

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