Lynn v. Hanna

Decision Date22 June 1927
Docket Number(No. 4610.)
Citation296 S.W. 280
PartiesLYNN et al. v. HANNA.
CourtTexas Supreme Court

Suit by Mrs. V. O. Lynn and husband against Mrs. L. M. Hanna and another. Plaintiffs' appeal from an order or judgment. granting named defendant's motion for a new trial and setting aside interlocutory and final judgments for plaintiffs, was dismissed by the Court of Civil Appeals (273 S. W. 339), and plaintiffs bring error. Affirmed.

Louis J. Moore, of Granbury, and Hunter, Hunter & Greathouse, of Fort Worth, for plaintiffs in error.

W. F. Robertson, of Austin, and Wm. Morton, of Dallas, for defendant in error.

PIERSON, J.

This case was referred to Section A of the Commission of Appeals, and an opinion was prepared by Judge Harvey. The case was withdrawn from the Commission and taken under submission by the court.

We are in accord with much of Judge Harvey's opinion, and will make use of his statement of the case and of such parts of his opinion as express our views of the law. In fact, the necessary disposition of the case becomes apparent, we think, when the facts are clearly stated:

"On October 15, 1923, an interlocutory judgment by default was rendered in this suit by the district court for the Ninety-Fifth judicial district of Texas, in favor of Mrs. V. O. Lynn and husband, the plaintiffs, against Mrs. L. M. Hanna and Dr. Earl Carter, the defendants, but the court deferred the matter of assessing the plaintiffs' damages to a later date. The defendant, Mrs. L. M. Hanna, never was served with the citation in the suit, though the officer's return on the writ showed personal service of the citation on her. On October 17, 1923, the second day after the entry of the default judgment, Mrs. Hanna filed a motion for new trial seeking to set aside the above-mentioned default judgment for reasons stated in the motion. This motion was by the court overruled on December 1, 1923. On December 8, 1923, the court heard proof of the plaintiffs' damages, which consisted of the promissory note sued on, and assessed the amount of damages and rendered final judgment therefor against both defendants. This judgment was entered in the court minutes on December 18, 1923. After this last-mentioned judgment was rendered, no motion for new trial was filed by either defendant until February 23, 1924, on which date the defendant Mrs. L. M. Hanna filed a motion in such suit, in the form of an ordinary motion for new trial, praying that said last-mentioned judgment be set aside and vacated, and that a new trial be granted. As grounds for new trial, she alleges the want of citation upon her in said suit, and also alleges a meritorious defense to the suit. Said motion, as further ground for new trial, alleges that the court, for reasons that are stated, erred in overruling the motion for new trial that was filed by Mrs. Hanna on October 17, 1923, as above stated.

"The trial court is one of the class of district courts whose rules of practice and procedure are regulated by the act of 1923, which constitutes articles 2092 and 2093 of the Revised Civil Statutes of 1925. Section 30 of said article 2092 reads as follows:

"`Judgment Final, When. — Judgments of such civil district courts shall become as final after the expiration of 30 days after the date of judgment or after a motion for a new trial is overruled as if the term...

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28 cases
  • Puls v. Clark
    • United States
    • Texas Court of Appeals
    • January 20, 1947
    ...errors made by the trial court on appeal, by writ of error or certiorari. Stewart v. Byrne, Tex.Com.App., 42 S.W.2d 234; Lynn v. Hanna, 116 Tex. 652, 296 S.W. 280. A suit in equity to vacate a former judgment usually relates to matters incident to the trial in the lower court which prevente......
  • Wuxi Taihu Tractor Co. v. the York Group Inc.
    • United States
    • U.S. District Court — Southern District of Texas
    • February 7, 2011
    ...to laches, a bill of review must be predicated on the party's having failed to exhaust its legal remedies. See Lynn v. Hanna, 116 Tex. 652, 296 S.W. 280, 281 (1927), Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex.1989), Perdue v. Patten Corp., 142 S.W.3d 596, 606 (Tex.App.-Austin 2004).......
  • Johnson v. Potter
    • United States
    • Texas Court of Appeals
    • December 3, 1964
    ...have been presented to the appellate court by appeal; (Bankston v. Bankston, Tex.Civ.App., 251 S.W.2d 768, 773, Mand.Ref.; Lynn v. Hanna, 116 Tex. 652, 296 S.W. 280; or by way of application for writ of error; 25 Tex.Jur. 638, 639; 17 Tex.Jur. p. 28; Avant v. Broun, Tex.Civ.App., 91 S.W.2d ......
  • Brown v. American Finance Co.
    • United States
    • Texas Court of Appeals
    • July 19, 1968
    ...for new trial, being an interlocutory order, is not appealable. 1 Dial v. Collins et al., 40 Tex. 367, 368 (1874); Lynn et al. v. Hanna, 116 Tex. 652, 296 S.W. 280 (1927) ('The Court of Civil Appeals and this court are without power to review it.'); Plummer et ux v. Van Arsdell et al., 117 ......
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