Lynn v. Hanna

• Decision Date: 22 June 1927
• Docket Number: (No. 4610.)
• Citation: 296 S.W. 280
• Parties: LYNN et al. v. HANNA.
• Court: Texas Supreme Court

296 S.W. 280

LYNN et al. v. HANNA.

(No. 4610.)

Supreme Court of Texas.

June 22, 1927.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

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 The case was withdrawn from the Commission and taken under submission by the court.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...