Independent Life Ins. Co. of America v. Work, 6334.

• Decision Date: 31 December 1934
• Docket Number: No. 6334.,6334.
• Citation: 77 S.W.2d 1036
• Parties: INDEPENDENT LIFE INS. CO. OF AMERICA v. WORK, District Judge, et al.
• Court: Texas Supreme Court

77 S.W.2d 1036

INDEPENDENT LIFE INS. CO. OF AMERICA v. WORK, District Judge, et al.

No. 6334.

Supreme Court of Texas.

December 31, 1934.

Original petition for mandamus and prohibition by the Independent Life Insurance Company of America against T. A. Work, District Judge, and others.

Writ of mandamus granted.

Burgess, Burgess, Chrestman & Brundidge, M. N. Chrestman, H. A. Bateman, and L. E. Elliott, all of Dallas, for relator.

W. M. Pierson, H. C. Ford, and T. A. Work, all of Dallas, for respondents.

GREENWOOD, Justice.

Relator has filed an original petition for the issuance of a writ of mandamus to compel the respondent T. A. Work, judge of the Sixty-Eighth judicial district court of Dallas county, to give force and effect to a judgment rendered in said court in favor of relator against respondent Mrs. Sadie Moody. Relator's right to the writ depends upon the application of article 2092, Revised Civil Statutes of 1925, as amended by chapter 70, Acts of the Fifth Called Session of the Forty-First Legislature 1930, p. 227 (Vernon's Ann. Civ. St. art. 2092), which contains the rules of practice and procedure for the civil district courts of Dallas county.

On March 18, 1932, a judgment was rendered in said court that the respondent Mrs. Moody take nothing by her suit as plaintiff against relator as defendant. Mrs. Moody filed her motion for a new trial on March 26, 1932, and filed her amended motion for a new trial on April 14, 1932.

The parties on May 7, 1932, filed in the case their written agreement in the following language: "Now come the parties plaintiff and defendant, through their respective attorneys of record, and agree that the presentation of, and hearing on, the Plaintiff's First Amended Original Motion for New Trial may be presented on May 14th, 1932, or at any date before said time that the court may take same up. It is further agreed, that if said Motion for New Trial is not taken up at the time above stated, that it may then be taken up on or before May 21st, 1932, and all parties hereto waive any objections as to the time of presenting said motion."

The amended motion for new trial was presented to the court on May 7, 1932. Without having previously determined the motion, the trial court, on June 30, 1932, entered an order sustaining it and granting a new trial. The case was then set for trial upon October 17, 1932. Whereupon relator filed a motion to strike from the record the order granting a new trial and to remove the cause from the list of cases assigned for trial, on the ground that the amended motion was overruled by operation of law at the expiration of 45 days from the date of its filing, or on May 29, 1932, and that the court was without power thereafter to grant the motion. This motion to strike was overruled.

Relator prays for the issuance of a writ of mandamus compelling the respondent, the district judge, to give force and effect to the judgment of March 18, 1932, and to proceed no further in said cause so long as said judgment remains unreversed.

The above statement shows that the order granting the new trial was not made until June 30, 1932, 54 days after the motion was presented to the court "by written agreement of the parties," which agreement fixed no date for its decision.

Subdivision 28, art. 2092, R. S. 1925, originally provided in its closing sentence: "All motions and amended motions for new trials shall be presented within thirty days after the original motion or amended motion is filed and shall be determined within not exceeding forty-five days after the original or amended motion is filed, unless by written agreement of the parties filed in the case, the decision of the motion is postponed to a later date."

Original subdivisions 28 and 29 have been applied as directory, until subdivision 28 was amended in 1930 (Vernon's Ann. Civ. St. art. 2092, subd. 28). Subdivision 30 has always been held to mean exactly what it says, viz., that the judgment is as final after 30 days from the date of judgment or date of the order overruling the motion for new trial "as if the term of court had expired," and further that then the judgment could not be set aside "except by bill of review for sufficient cause, filed within the time allowed by law for the filing of bills of review in other district courts."

This court declared nothing new in upholding the power of the court to control its judgments, during the term, with or without motion.

In Cohen v. Moore, 101 Tex. 47, 104 S. W. 1053, 1054, in an opinion by Mr. Justice Williams, it is said:

"The power to set aside at the same term, at which they are rendered, its judgments and orders, is one inherent in every court of general jurisdiction, and it is not taken away by the statutory provisions which regulate the subject of new trials and the setting aside of defaults. This has repeatedly been held with reference to the district and county courts in which the statutes prescribe the times for filing such motions and require them to be in writing as fully as is required in justice's courts. The principle was applied to justice's courts by the Court of Appeals in the case of Hinzie v. Ward, 1 White & W. Civ. Cas. Ct. App. § 1314.

"The order setting aside the default not being void, the cause stood open for further trial, and the justice of the peace still had jurisdiction over the subject-matter and the parties, with power to render final judgment."

The opinions of Mr. Justice Pierson in Pierce Co. v. Watkins, 114 Tex. 153, 263 S. W. 905, 906, and in Wear v. McCallum, 119 Tex. 473, 33 S.W.(2d) 723, have often been referred to as contradictory to the opinions of Mr. Chief Justice Cureton in Townes v. Lattimore, 114 Tex. 511, 272 S. W. 435, and Nevitt v. Wilson, 116 Tex. 29, 285 S. W. 1079, 1083, 48 A. L. R. 355, together with the adopted opinion of Judge Nickels in Diamond Ice & Cold Storage Co. v. Strube, 115 Tex. 515, 284 S. W. 935.

In Pierce Co. v. Watkins, supra, the court was determining the effect of subdivision 30, declaring when the term of court, as to each cause, in the courts governed by the act, came to an end. The gist of the decision is:

"As no motion for a new trial was filed within the time prescribed by chapter 105, and thirty days having expired before the court vacated and set aside the judgment, the judgment was final under the provisions of chapter 105. * * *

"The law is a valid exercise of legislative authority, and well designed to have a wholesome effect upon the dispatch and finality of litigation in the courts in our congested centers. Legislative prerogative has always extended to fixing the time when judgments become final and the time when the necessary steps in the procedure must be taken.

"While the act is a departure from the former regulations respecting motions for new trial, when the judgment becomes final, and other matters of procedure, yet its terms are reasonable and generous. Instead of two days, as heretofore allowed, ten days are allowed in which a motion for new trial may be filed. It may be amended within twenty days after it is filed. The judgment does not become final until after the expiration of thirty days from the date of the judgment, or after a motion for new trial was overruled, at which time the term of court is at an end as far as the immediate case is concerned."

In Wear v. McCallum, supra, in which Mr. Justice Pierson also rendered the opinion, no motion for new trial was filed until 60 days after the date of the judgment, and the court, as in Pierce Co. v. Watkins, held that the judgment became final 30 days after date of judgment; and that thereafter the court was without jurisdiction to grant a motion for new trial.

In Townes v. Lattimore, supra, the original motion for new trial was filed within 3 days after final judgment. The amended motion was filed more than 30 days after the original motion was filed; but the amended motion was determined by granting it 2 days after it was filed, being 35 days (or less than 45 days) after the original motion was filed. No 30 days having elapsed after judgment without motion filed, and no 30 days having elapsed after any motion for new trial was overruled, under the plain provisions of that act, the court was empowered to act upon the motion at the date it was granted.

Nevitt v. Wilson, supra, goes a step further than Townes v. Lattimore, though involving no new principle. Here the court held, the opinion being by Chief Justice Cureton, that: "Jurisdiction to act on a motion filed within the statutory period extends until the motion is acted upon, even though this is after the expiration of 45 days from its filing."

The decision was based upon the rule that a trial court, "in virtue of its inherent power as a court, can grant new trials so long as it has jurisdiction of the cause."

In connection with this holding, the court points out that subdivision 30 of article 2092 expressly declares that the judgment shall...