Johnson v. Court of Civil Appeals for Seventh Supreme Judicial Dist. of Tex.
| Decision Date | 03 October 1961 |
| Docket Number | No. A-8256,A-8256 |
| Citation | 162 Tex. 613,350 S.W.2d 330 |
| Parties | J. E. JOHNSON et al., Relators, v. COURT OF CIVIL APPEALS FOR the SEVENTH SUPREME JUDICIAL DISTRICT OF TEXAS et al., Respondents. |
| Court | Texas Supreme Court |
Lumpkin, Watson, Dunlap & Smith, Wayne Bagley, Amarillo, for relators.
Monning & Monning, Amarillo, for respondents.
This is an original mandamus proceeding by relators, J. E. Johnson, County Judge of Armstrong County, Texas, Armstrong County, Texas, and the State of Texas, seeking to compel the respondent, the Court of Civil Appeals for the Seventh Supreme Judicial District of Texas, at Amarillo, to rescined its order granting a writ of mandamus against relator Johnson, directing him to set aside his order granting a new trial in Cause No. 826 in the County Court of Armstrong County, and to enter judgment in said cause in accordance with the jury verdict in favor of the condemnees in said cause. Other respondents named are James G. Denton, Chief Justice of the Court of Civil Appeals of the Seventh Supreme Judicial District of Texas, the Honorable Alton B. Chapman and the Honorable E. O. Northcutt, its Associate Justices, Elmo Payne, its Clerk; and Anna I. Hibbets, Frank J. Hibbets, George H. Moore and his wife, Mary Shaughnessy Moore, Frank Allen Keith and his wife, Frances Shaughnessy Keith, Ann Shaughnessy Kelly and James Cope.
This matter involves a condemnation suit in Armstrong County. After the jury had rendered its verdict on special issues in the County Court trial, Armstrong County and the State of Texas, the condemnors and relators here, made a motion for new trial, setting out six grounds of error. During term time the trial court, after hearing the motion, granted the new trial without stating any reason for granting same. Thereafter, on or about October 26, 1960, the condemnee respondents filed application for writ of mandamus in the Court of Civil Appeals for the Seventh Supreme Judicial District of Texas, which was granted, and the writ of mandamus was ordered to be issued in its opinion of January 3, 1961, and reported in 342 S.W.2d 642.
This court has jurisdiction to entertain the application for writ of mandamus under Art. 1733, Vernon's Ann.Texas St., which reads in part as follows:
'The Supreme Court * * * shall have power to issue writs of * * * mandamus agreeable to the principles of law regulating such writs, against any district judge, or Court of Civil Appeals or judges thereof * * *.'
We hold that the Court of Civil Appeals did not have authority to order the writ of mandamus to issue.
It is the general rule, well established, that an appellate court will not review by mandamus an action of the trial court granting a new trial while it still has jurisdiction of the cause. The discretion and judgment of the trial court in granting a new trial cannot be controlled or directed by mandamus. Angelina Casualty Co. v. Fisher, Tex.Civ.App., 319 S.W.2d 387; Anchor v. Martin, Tex.Com.App.1927, 116 Tex. 409, 292 S.W. 877; Trevino v. Doughty, 311 S.W.2d 276, San Antonio Court of Civil Appeals, and many other authorities not necessary to list herein.
There are only two instances where any appellate court of this state has ever directed the trial judge to set aside its order granting motion for new trial. These instances are:
(1) W...
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