Humble Exploration Co. v. Browning

• Decision Date: 26 March 1985
• Docket Number: No. 05-82-01378-CV,05-82-01378-CV
• Citation: Humble Exploration Co. v. Browning, 690 S.W.2d 321 (Tex. App. 1985)
• Parties: HUMBLE EXPLORATION COMPANY, et al., Appellants, v. Jane H. BROWNING, et al., Appellees.
• Court: Texas Court of Appeals

Page 321

690 S.W.2d 321

HUMBLE EXPLORATION COMPANY, et al., Appellants, v.Jane H. BROWNING, et al., Appellees.

No. 05-82-01378-CV.

Court of Appeals of Texas Dallas.

March 26, 1985.

Rehearing Denied April 25, 1985.

Joe H. Reynolds, Kay T. Pierce, T. Lamar McCorkle, Jr., J. Bruce Bennett, Reynolds, Allen & Cook, Dallas, for appellants.

R. Jack Ayres, Jr., Kenneth F. Nye, Thomas V. Murto III, Larry B. Dwight, G.H. Kelsoe, Kelsoe & Kelsoe, Joseph W. Geary, Geary, Stahl & Spencer, Dallas, for appellees.

Before the court en banc.¹

CLAUDE WILLIAMS, Retired Chief Justice.

ON MOTION OF APPELLEES TO STRIKEAPPELLANT'S MOTION TO

WITHDRAW JUDGMENT DISMISSING APPEAL AND APPELLEE'S

MOTION TO SET ASIDETHE COURT'S ORDER OF

OCTOBER 4, 1984

Resolution of the questions presented by these motions requires an answer to two questions: (1) does the court of appeals have plenary power over its judgments within the term after a motion for rehearing is overruled and (2) if such a plenary power existed was it properly applied in the instant case.In answer to the first question we hold that the Court of Appeals does possess a plenary power over its judgments within the term after the motion for rehearing is overruled.In answer to the second question we hold that the court of appeals improperly applied its plenary power in the instant case and therefore the judgment of this court rendered on July 11, 1984 should be reinstated.

A comprehensive resume of the background of this case is essential.After the appeal of this case had been perfected to this court numerous motions were filed.Appellees filed their motion to dismiss the appeal and appellants filed their motion to abate the appeal pending the outcome of the proceedings in the case in the United States District Court and United States Court of Appeals.This court unanimously overruled and denied the plea in abatement.Thereafter, on February 9, 1984, appellees' motion to dismiss the appeal was argued before the court.After having the matter under consideration for several months and being fully advised of all the facts, circumstances, and law revealed by the record and briefs, this court, on July 11, 1984, unanimously delivered a comprehensive opinion by Justice Keith in which appellees' motion to dismiss the appeal was granted.Humble Exploration Co. v. Browning, 677 S.W.2d 111(Tex.App.--Dallas 1984, no writ).

Appellants filed their motion for rehearing in due time and on September 7, 1984this court unanimously overruled such motion.

Thereafter, on October 3, 1984, twenty-six days later and without any effort to comply with Rule 21c Texas Rules of Civil Procedure, which specifically mandates that a motion be filed and approved in order to file a second motion for rehearing, appellants filed a "motion to withdraw judgment granting appelleesmotion to dismiss appeal."A careful examination of this motion reveals that same was obviously wrongfully and purposely denominated and constituted nothing more than a second motion for rehearing which could not be legally filed in this court after 15 days of the order of this court on September 7, 1984, as specifically mandated by Rule 21c.

Although faced with the undeniable fact that the judgment and opinion of this court became final after the fifteenth day after the unanimous order overruling the only legally filed motion for rehearing on September 7, 1984, a majority of the court, on October 4, 1984, over the vigorous and emphatic dissent of Chief Justice Williams, and without notice to the parties, caused the entry of an ex parte order sustaining appellants' motion to withdraw judgment dismissing the appeal and thereby vacating the court's judgment of July 11, 1984, and allowing the filing of motions and briefs.

Now, various motions and briefs having been submitted it becomes necessary to decide the questions set forth above.

PLENARY POWER OF APPELLATE COURT

The question here presented concerns the effect of the term of the appellate court which, as prescribed by statute, "shall begin and end with the calendar year."TEX.REV.CIV.STAT.ANN. art. 1816(Vernon Supp.1984).According to common law, every court of general jurisdiction has inherent power to set aside or modify its judgments within the term at which they were rendered.This rule was firmly recognized with respect to trial courts.Townes v. Lattimore, 114 Tex. 511, 272 S.W. 435, 436(1925);See, Eichelberger v. Eichelberger, 582 S.W.2d 395, 398(Tex.1979).It was equally well recognized with respect to the courts of civil appeals.Henningsmeyer v. First State Bank, 109 Tex. 116, 195 S.W. 1137, 1138(1917);McGhee v. Romatka, 92 Tex. 241, 47 S.W. 520(1898).

The period within which a trial court may exercise this inherent power was modified by the special practice act and later by the Texas Rules of Civil Procedure.The original act provided that the judgment of a district court should become "final" on expiration of thirty days after rendition of the judgment or the overruling of a motion for new trial"as if the term of court had expired."TEX.LAWS 1923 p. 215.This provision was construed as continuing the court's jurisdiction until thirty days after the motion for new trial was acted on, even though no action was taken within the term.Nevitt v. Wilson, 116 Tex. 29, 285 S.W. 1079(1926).This construction, according to the supreme court, was in line with the rule that statutes governing new trials will not be construed as attempting to abridge the courts inherent power to grant new trials so long as it has jurisdiction of the case.SeeNevitt, 285 S.W. at 1083.

Since the original act, according to Nevitt, set no limit on the period of the trial court's power over its judgments when a motion for new trial was filed, the Act was amended to provide that a motion for new trial is overruled by operation of law if not acted on within forty-five days after it is filed.TEX.LAWS 1930, p. 227.Under this amendment, the court's plenary jurisdiction ends, not when the motion for new trial is overruled, but thirty days later, as if the term of the court had been expired.Dallas Storage & Warehouse v. Taylor, 124 Tex. 315, 77 S.W.2d 1031, 1034(1934).In Dallas Storagethe supreme court construed the provisions of the Act prescribing the times for filing and amending a motion for new trial as mandatory, but held that this construction "does not trench upon the inherent power of the court to exercise control over its judgments during the time in which it is rendered, so long as it has jurisdiction of the cause."In Dallas Storagethe court construed the statute to mean that the district court term ends with respect to any particular case thirty days after the judgment, if no timely motion for new trial is filed, or thirty days after a timely motion is overruled, either by order or by operation of law.Consequently, although an untimely motion for new trial has no effect, the court may still grant a new trial so long as its jurisdiction continues, that is, until the end of the term as defined by the statute with respect to the particular case.

These provisions of the Special Practice Act were carried forward in the Texas Rules of Civil Procedure.Rule 329b,Texas Rules of Civil Procedure, as recently amended, no longer provides that the judgment shall be "final" and makes no provision concerning the end of the term.Instead, it defines the court's "plenary power to grant a new trial or vacate, modify, correct or reform the judgment," with substantially the same effect.TEX.R.CIV.P. 329b(d)-(f).Thus, subdivision (e) provides that the "plenary power" continues "until thirty days after such timely filed motions are overruled."

No similar statute or rule has been adopted with respect to the terms of the appellate courts or their powers over judgments.Consequently, this power continues until the end of the calendar year, when the term ends, as provided by article 1816, unless the exclusive jurisdiction of the supreme court has attached by the filing of an application for writ of error.The continuation of this power after the motion for rehearing is overruled is recognized by rule 446 of the Texas Rules of Civil Procedure, which provides:

If a Court of Appeals vacates, modifies, corrects, or reforms its judgment after the mandate has been issued, the mandate shall have no further effect and a new mandate may be issued.

Of course, no mandate can properly be issued until the motion for rehearing has been overruled or the time for filing such a motion has expired.TEX.R.CIV.P. 442.

The significance of the end of the term of the appellate court after adoption of the Rules of Civil Procedure was recognized by the supreme court in Wilson Independent School District v. Weaver, 143 Tex. 530, 187 S.W.2d 221, 222(1945).The only question presented was whether the jurisdiction of the court of civil appeals continued into the succeeding term, and the supreme court held that it did because of the pendency of a motion to certify at the expiration of the term.From this opinion it is clear that nothing in the present rules changes the rule followed under the former statutes that the appellate court has jurisdiction until the expiration of the term.

When the appeal is perfected, the court of appeals"acquires plenary jurisdiction over the entire controversy," but when an application for writ of error is filed, the exclusive jurisdiction of the supreme court attaches.Ammex Warehouse Company v. Archer, 381 S.W.2d 478, 482(Tex.1964).Thus, it is clear that the filing of an application for writ of error, as well as expiration of the term, terminates the jurisdiction of the intermediate court.Johnson v. Sovereign Corporation, 125 Tex. 329, 83 S.W.2d 605, 608(1935);Coiffure Continental v. Allert, 521 S.W.2d 665(Tex.Civ.App.--Dallas 1975, no writ).Moreover, the intermediate court has no power to change its judgment after the supreme court has approved it by denying a writ of...