Metts v. Waits

• Decision Date: 30 June 1926
• Docket Number: (No. 6996.)
• Citation: 286 S.W. 923
• Parties: METTS et ux. v. WAITS.
• Court: Texas Court of Appeals

Page 923

286 S.W. 923

METTS et ux. v. WAITS.

(No. 6996.)

Court of Civil Appeals of Texas. Austin.

June 30, 1926.

Rehearing Denied October 4, 1926.

Appeal from District Court, Coleman County; J. O. Woodward, Judge.

Suit by J. W. Waits against A. E. Metts and wife. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Jenkins, Miller & Harris, of Brownwood, for appellants.

W. Marcus Weatherred, of Coleman, for appellee.

BAUGH, J.

The controlling issue in this case is whether the trial court erred in sustaining appellee's exception to appellants' motion for a new trial. Other questions are raised, but we deem this issue determinative of this appeal. We copy in part the statement of the case made in appellee's brief as follows:

"This suit was filed by appellee, J. W. Waits, against appellants, A. E. Metts and Ethel Metts, on December 24, 1923, for the amount due on a note for $1,000, signed by appellants, dated September 19, 1923, payable to Coleman National Bank on November 1, 1923, secured by deed of trust on certain property in Brown county, Texas, of said date. which note and deed of trust were duly indorsed and transferred to appellee by said Coleman National Bank. Defendants answered by general demurrer, general denial, and by plea that the property covered by said trust deed was homestead of defendants.

"Trial was had before a jury, and the court instructed a verdict in favor of appellee for the sum of $487, and a finding that said deed of trust was a valid lien, which was duly returned, and upon which judgment was entered in favor of appellee on June 19, 1925. On August 21, 1925, appellants filed motion for new trial, to which appellee filed his answer and exception, because judgment was rendered on June 19, 1925, and said motion for new trial was not filed within two days as required by law, but was filed on August 21, 1925, more than two months after judgment was rendered, which exception was by the court sustained, and said motion overruled."

The original motion for a new trial was filed on August 18, 1925, and the amended motion three days later. The trial court having refused to hear evidence on said motion, and having sustained appellee's exception thereto, we will accept as true the allegations made in said motion, except where the record discloses the contrary.

It is well settled that the statute, requiring motions for new trials and in arrest of judgment (article 2232, R. S. 1925) to be filed within two days after rendition of the verdict, is directory only, and that it is within the sound discretion of the trial court to pass upon motions filed more than two days thereafter. Head v. Altman (Tex. Civ. App.) 159 S. W. 135; First Nat. Bank of Fort Worth v. Henwood (Tex. Civ. App.) 183 S. W. 5; Dittman v. Model Baking Co. (Tex. Com. App.) 271 S. W. 75. And in such case the discretion of the trial court is not arbitrary, but will be reviewed on appeal, where abused. Insurance Co. v. Tomkies, 28 Tex. Civ. App. 157, 66 S. W. 1109; Hubb-Diggs Co. v. Mitchell (Tex. Civ. App.) 231 S. W. 425; Lee v. Zundelowitz (Tex. Civ. App.) 242 S. W. 279. But, where such motion is filed after the time fixed by said statute, it is incumbent upon the party making same, not only to absolve himself from negligence for failure to file same sooner, but also to show that he had a meritorious defense, which, without fault on his part, he was deprived of on the trial of the cause. Monarch Pet. Co. v. Jones (Tex. Civ. App.) 232 S. W. 1116; Thomas v. Goldberg (Tex. Civ. App.) 283 S. W. 230; Holliday v. Holliday, 72 Tex. 585, 10 S. W. 690; El Paso & S. W. Ry. Co. v. Kelley, 99 Tex. 87, 87 S. W. 660. And as stated in the case last cited:

"If, however, the showing be made that the party applying for the relief was not in fault in failing to file his answer, nor in failing to file the motion within the time allowed by law, then the rights of the parties are the same as if the motion had been filed in time."

The motion of appellants sets forth meritorious defenses, which it is obvious from the record appellants were not permitted to present on the trial, and which, if proven, would have defeated appellee's suit — defenses which, under the law, they were entitled to make and to have submitted to a jury. Hence the only question here presented is whether appellants have excused themselves of negligence in their failure to have their case properly presented on the trial, and for their delay in filing their motion for a new trial. We have reached the conclusion, that, upon the grounds set forth in their motion, accepted as true, they have sufficiently done so. These grounds, as alleged, are substantially as follows:

That before appearance day in said case appellants employed Hon. Walter C. Woodward to represent them; that he appeared and secured continuance of said case at the January and June terms, 1924, of said court; that prior to the January term, 1925, of said court, he advised them that, because of his duties as state senator and other pressing matters, he...