Reese v. Piperi, No. B-5677

CourtSupreme Court of Texas
Writing for the CourtREAVLEY; Katherine Marie Reese seeks by this original proceeding to obtain issuance of a writ of mandamus to compel Honorable James A. Piperi
Citation534 S.W.2d 329
Docket NumberNo. B-5677
Decision Date03 March 1976
PartiesKatherine Marie REESE, Relator, v. Honorable James A. PIPERI, Judge, et al., Respondents.

Page 329

534 S.W.2d 329
Katherine Marie REESE, Relator,
v.
Honorable James A. PIPERI, Judge, et al., Respondents.
No. B-5677.
Supreme Court of Texas.
March 3, 1976.

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.

REAVLEY, Justice.

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.

Page 330

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...

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91 practice notes
  • S & A Restaurant Corp. v. Leal, No. 04-91-00551-CV
    • United States
    • Court of Appeals of Texas
    • March 14, 1994
    ...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......
  • Jones v. Hubbard, No. 25
    • United States
    • Court of Appeals of Maryland
    • November 16, 1999
    ...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 [ (......
  • State v. Naylor (In re State), No. 11–0114
    • United States
    • Supreme Court of Texas
    • June 19, 2015
    ...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 ......
  • Lawrence Systems, Inc. By and Through Douglas-Guardian Warehouse Corp. v. Superior Feeders, Inc., DOUGLAS-GUARDIAN
    • United States
    • Court of Appeals of Texas
    • June 30, 1994
    ...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 ......
  • Request a trial to view additional results
91 cases
  • S & A Restaurant Corp. v. Leal, No. 04-91-00551-CV
    • United States
    • Court of Appeals of Texas
    • March 14, 1994
    ...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......
  • Jones v. Hubbard, No. 25
    • United States
    • Court of Appeals of Maryland
    • November 16, 1999
    ...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 [ (......
  • State v. Naylor (In re State), No. 11–0114
    • United States
    • Supreme Court of Texas
    • June 19, 2015
    ...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 ......
  • Lawrence Systems, Inc. By and Through Douglas-Guardian Warehouse Corp. v. Superior Feeders, Inc., DOUGLAS-GUARDIAN
    • United States
    • Court of Appeals of Texas
    • June 30, 1994
    ...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 ......
  • Request a trial to view additional results

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