Jones v. Bass, 2026.

• Decision Date: 03 December 1930
• Docket Number: No. 2026.,2026.
• Citation: 33 S.W.2d 199
• Parties: JONES et al. v. BASS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 199

33 S.W.2d 199

JONES et al. v. BASS.^*

No. 2026.

Court of Civil Appeals of Texas. Beaumont.

December 3, 1930.

Rehearing Denied December 11, 1930.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Suit by R. A. Bass against H. S. Jones and another. Judgment for plaintiff, and thereafter Helen Jones, individually, and as administratrix of the estate of H. S. Jones, deceased, filed a plea of intervention, on which judgment was entered against her in the order overruling defendants' motion for a new trial, from which the defendants and intervener appeal.

Judgment against intervener reversed, and plea of intervention dismissed, and otherwise appeal dismissed.

Allen B. Hannay and Sam G. Croom, both of Houston, for appellants.

Geo. A. Byers, of Houston, for appellee.

WALKER, J.

This case originated in district court, Harris county, was appealed to the Galveston Court of Civil Appeals, and transferred to our docket by order of the Supreme Court.

The several district courts of Harris county are governed by article 199, R. S. 1925, subdivision 11 of which provides two terms for each of the courts each year; the first term, designated January-June term, begins on the first Monday in January and continues until and includes the Sunday next before the first Monday in July; the second term, designated as the July-December term, begins on the first Monday in July and continues until and includes the Sunday next before the first Monday in the following January. Subdivisions 28, 29, and 30, article 2092. R. S. 1925, regulate the trials and the filing of motions and amended motions for new trials. By section 28 it is provided that all motions for new trials 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." Section 29 provides that motion for new trial shall be filed within ten days after judgment is rendered, and may be amended by leave of the court at any time before it is acted on "within twenty days after it is filed." Section 30 provides that judgment shall become final after the expiration of thirty days after the date of judgment or after a motion for new trial is overruled "as if the term of court had expired." This section further provides that the judgment cannot be set aside after becoming final "except by bill of review for sufficient cause."

This suit was by appellee against F. H. and H. S. Jones to foreclose an abstract of judgment lien against certain land situated in Harris and Brazoria counties fully described in plaintiff's petition. The legal title to this land stood in the name of H. S. Jones. Appellee pleaded that the property in fact belonged to F. H. Jones and that the title was put in the name of H. S. Jones in fraud of the creditors of F. H. Jones. The defendants answered by pleas of general demurrer, general denial, and of homestead by F. H. Jones as to the Harris county land; also the abstract of judgment was attacked on the grounds that it was void as to form and was improperly indexed. The case was called for trial on November 18, 1927. After hearing all the evidence and argument of counsel, immediately following the announcement of the parties, the court without "the consent of the parties placed on the record," as required by rule 66 for the district courts of this state, carried the case under advisement through the balance of the July-December term of 1927, through the January-June term of 1928, and did not enter final judgment until the 23d day of August, during the July-December term of 1928. The judgment denied the claim of homestead and foreclosed the abstract of judgment lien against the Harris county land, but denied foreclosure of the lien against the Brazoria county land; however, execution was ordered against the Brazoria county land for any deficiency judgment after the sale of the Harris county land. The defendants gave notice of appeal against this judgment to the Court of Civil Appeals at Galveston, but appeal was not perfected from that notice. After the filing of motion for new trial, date not shown, appellants filed their amended motion for new trial on the 20th day of September following entry of judgment. Upon the record as presented, we conclude that this motion was regularly continued to the January-June term of 1929; but the record affirmatively excludes any conclusion that any further order of continuance was made. The following are the facts on this issue: On the 27th day of April, 1929, the court entered its order granting appellants a new trial as prayed for in their amended motion for new trial; later, date not shown, the court determined that this order was wrongfully entered and revoked the same. No further proceeding was had during that term of court. The next order was made by the court on December 14, 1929, overruling the motion for new trial, to which appellants excepted and gave notice of appeal to the Galveston Court of Civil Appeals. This appeal was duly perfected and the case transferred as above stated to the docket of this court.

Opinion.

Upon the facts stated, under the provisions of subdivisions 28, 29, and 30 of article 2092, R. S. 1925, as construed by Automobile Underwriters of America v. Radford (Tex. Civ. App.) 293 S. W. 869, same case by Commission of Appeals, 299 S. W. 852, the judgment of the lower court became final during or on adjournment of the January-June term, 1929. We do not argue this point, since both parties seem to agree thereto.

Appellee contends that the motion was overruled on adjournment of the July-December term, 1928, but we have overruled that contention. That the motion for new trial was finally disposed of during or on adjournment of the January-June term, 1929, appellants sustain by the following argument. Construing subdivision 28 of article 2092, they say: "We submit that the correct construction of the foregoing rule applicable to motions for a new trial is that a motion for a new trial must be acted upon at all events not later than the term of court immediately succeeding the term of court at which it was filed. If this is not a correct interpretation, what limitation is there upon the trial judge? Why could the trial judge not wait ten years or longer, if he chose, to pass on said motion? Would not the litigants be utterly powerless to force the trial judge to act? Under what authority could the litigants force him to act and when. Certainly the Legislature did not intend the important matter of the time within which a motion for a new trial must be acted upon to be left entirely to the whim and caprice of a trial judge. We earnestly submit that such motion can only be acted upon at the term of court next succeeding the term at which it is filed and...