Reese v. Piperi
| Decision Date | 03 March 1976 |
| Docket Number | No. B-5677,B-5677 |
| Parties | Katherine Marie REESE, Relator, v. Honorable James A. PIPERI, Judge, et al., Respondents. |
| Court | Texas Supreme Court |
Shirley, Chilton & Shirley, Douglas H. Chilton, Texas City, for relator.
Simpson, Morgan & Burwell, Inc., Susan W. Burris, Texas City, James A. Piperi, Galveston, for respondents.
Katherine Marie Reese seeks by this original proceeding to obtain issuance of a writ of mandamus to compel Honorable James A. Piperi, Judge of the Domestic Relations Court of Galveston County, to vacate an order purporting to grant a new trial in Cause No. 18,035 in that court. That cause is a divorce case originally filed by Katherine Marie Reese against Tony James Reese in November of 1974. The following events and dates are important:
On May 16, 1975 a default judgment was granted in favor of Katherine Reese.
On May 23, 1975 Tony Reese filed a motion for new trial, alleging that he had failed to appear in the cause for the reason that his wife had told him that it had been dismissed.
On June 25, 1975 a hearing was held on the motion for new trial at which time the trial judge announced his intention to grant the new trial on June 30 if the two parties were not able to resolve their differences by that time.
Nothing further happened until September 5, 1975 when the trial judge signed an order granting the motion for new trial.
Relator contends that the motion for new trial was overruled by operation of law on July 7, that date being 45 days after May 23 when the motion was filed. It would follow that the trial court had lost its jurisdiction before September 5 and that the judgment of May 16 is final. Relator's position is well taken.
Rule 329b(3) of the Texas Rules of Civil Procedure provides:
All motions and amended motions for new trial must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, unless by one or more successive written agreements of the parties in the case filed with the clerk of the court that decision of the motion is postponed to a day certain specifically set out in any such agreement. . . .
In the present case there has been no written agreement of the parties postponing the decision to a date certain. Therefore Rule 329b(4) is operative and 'such motion will be overruled by operation of law forty-five (45) days after the same is filed, unless disposed of by an order rendered on or before said date.'
If the motion for new trial was overruled by operation of law on July 7, the judgment became final 30 days thereafter and could not be set aside by the trial court except by bill of review. Rule 329b(5).
The contention of the respondent is that there was an oral rendition on June 25 which did grant the motion for new trial and which the trial court should now be allowed to enter nunc pro tunc (if we are not willing to consider this to be the nature of the order of September 5). We cannot accept this view of the matter for two reasons. In the first place there was no rendition on June 25. The following statements were made by the judge at the close of the hearing:
The trial judge makes his intention known. If the parties do not 'work out anything,' he will grant a new trial. The judge's intention to render judgment in the future cannot be a present rendition of judgment. The rendition of judgment is a present act, either by spoken word or signed memorandum, which decides the issues upon which the ruling is made. The opportunities for error and confusion may be minimized if judgments will be...
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S & A Restaurant Corp. v. Leal
...lady had gotten worse? Would you have paid more?" The appellant misplaces reliance upon cases that are distinguishable. Reese v. Piperi, 534 S.W.2d 329, 330 (Tex.1976) (holding that there was no rendition since the trial judge clearly stated he was taking the motion under advisement to disp......
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Jones v. Hubbard
...clerk. Travelers Express Co., Inc. v. Winters, Tex.Civ. App. 488 S.W.2d 890, 892 [(1972), overturned on other grounds by Reese v. Piperi, 534 S.W.2d 329 (Tex.1976)]. `Rendition' of judgment is distinguishable from its `entry' in the records. Rehm v. Fishman, Mo.App., 395 S.W.2d 251, 255 [ (......
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State v. Naylor (In re State)
...it announces rendition as a present act and not as an “intention to render judgment in the future.” Id. at 858 (quoting Reese v. Piperi, 534 S.W.2d 329, 330 (Tex.1976) ). Its judgment is final as of that date, even if the judgment is void or otherwise flawed.2 The record confirms the trial ......
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Lawrence Systems, Inc. By and Through Douglas-Guardian Warehouse Corp. v. Superior Feeders, Inc.
...by the court. The Texas rule is contrary to this position. In Texas, judgments may be rendered orally or in writing. See Reese v. Piperi, 534 S.W.2d 329, 330 (Tex.1976); Dibrell, 450 S.W.2d at 58-59; Bridgman v. Moore, 143 Tex. 250, 183 S.W.2d 705, 708 (1944). Also, in Texas, the rendition ......