Nabours v. McCord

• Citation: 82 S.W. 193
• Parties: NABOURS et al. v. McCORD et al.
• Decision Date: 30 July 1904
• Court: Court of Appeals of Texas

Page 193

82 S.W. 193

NABOURS et al. v. McCORD et al.

Court of Civil Appeals of Texas.

July 30, 1904.

Additional opinion.

For former opinions, see 75 S. W. 827, 80 S. W. 595, 82 S. W. 153.

KEY, J.

As six opinions have already been written in this case it is with reluctance that I write anything further. However, as Chief Justice Fisher, as shown by his dissenting opinion (82 S. W. 155), seems to apprehend that the majority opinion prepared by Associate Justice Eidson (82 S. W. 153) on the motion to reverse and render may be construed as modifying the findings of fact embodied in the original opinion of this court, prepared by Associate Justice Cochran (75 S. W. 827), I deem it proper to say that such was not the intention of the majority of the court; at any rate, such was not my intention. Nor, as I construe it, does Judge Eidson's opinion undertake to find conclusions of fact. It does state that there was evidence tending to show certain facts, but that statement is merely his construction of the record, and not a finding of fact by the majority of the court. I voted to overrule the motion on the assumption that the facts incorporated in the certificate of dissent, and upon which the Supreme Court based its decision, were established by uncontroverted testimony; and I did so for the following reasons:

1. I had, and still have, serious doubts as to the power of this court to grant the relief sought under the existing circumstances. The judgment of this court reversing and remanding the case was rendered June 3, 1903. The plaintiffs in error acquiesced in that judgment, and asked for no other relief until long after the court adjourned for the term, and after the time for filing a motion for rehearing had expired, when, on June 2, 1904, they filed this motion. As a general rule, courts have no power, after final adjournment for the term, to set aside or alter judgments and decrees previously rendered. To this general rule exceptions are sometimes created by statutes expressly conferring such power, and by judicial construction of other statutes authorizing motions for new trial to be filed within a specified time after cases have been decided. There is no statute of this state expressly conferring jurisdiction to modify a judgment at a subsequent term except for the purpose of correcting clerical errors; but it is settled law that continuance of a timely motion for rehearing extends the power of the court to decide the motion, and grant or refuse the relief sought. But I see no reason for holding that a motion for rehearing by one party should inure...