Reynolds v. Dallas County

• Decision Date: 07 January 1948
• Docket Number: No. A-1408.,A-1408.
• Parties: REYNOLDS v. DALLAS COUNTY et al.
• Court: Texas Supreme Court

Page 362

207 S.W.2d 362

REYNOLDS v. DALLAS COUNTY et al.

No. A-1408.

Supreme Court of Texas.

January 7, 1948.

Rehearing Denied February 4, 1948.

Certified Question from Court of Civil Appeals of Seventh Supreme Judicial District.

Suit by Preston Pope Reynolds against Dallas County and Al Templeton, County Judge, to enjoin defendants from using voting machines in elections, from liquidating outstanding indebtedness created by the purchase of such voting machines, and from purchasing other like machines for such purpose. Judgment for defendant was affirmed by Court of Civil Appeals, 203 S.W.2d 320, and plaintiff moved for rehearing and Court of Civil Appeals certified questions to Supreme Court.

Questions answered in accordance with opinion.

Claud C. Westerfeld, of Dallas, for appellant.

Dean Gauldin, Dist. Atty., and Ogden, Moseley & Foshee, all of Dallas, for appellees.

SHARP, Justice.

This case is before this Court on certified questions from the Court of Civil Appeals at Amarillo. The following are the essential facts involved:

This suit was filed in the District Court of Dallas County by Preston Pope Reynolds, a taxpayer and resident of that county, on behalf of himself and all others similarly situated, against Dallas County and Al Templeton, the County Judge, in which appellant sought to enjoin the appellees from using voting machines in elections, from liquidating outstanding indebtedness created by the purchase of such voting machines, and from purchasing other like machines for such purpose. It was alleged that Article 2997a, Vernon's Annotated Civil Statutes, as amended by the 49th Legislature in 1945, is invalid.

The case was submitted to the trial court without a jury, and resulted in a judgment denying appellant any relief. An appeal was perfected to the Court of Civil Appeals at Dallas, and under an order of this Court equalizing the dockets of the courts of civil appeals the case was transferred to the Court of Civil Appeals at Amarillo. On June 2, 1947, the Court of Civil Appeals, 203 S.W.2d 320, affirmed the judgment of the trial court.

Rule 458 of the Texas Rules of Civil Procedure, as amended on October 10, 1945, provides that any party desiring a rehearing of any matter determined by any court of civil appeals may within fifteen days after the date of rendition of the judgment or decision of the court file with the clerk of the court his motion in writing for a rehearing thereof. Rule No. 5 of the Texas Rules of Civil Procedure provides that when by the rules an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion, order the period enlarged, if application therefor is made before the expiration of the period originally prescribed; or upon motion it may permit the act to be done after the expiration of the specified period, where good cause is shown for the failure to act; but it may not enlarge the period for taking any action under the rules relating to new trials or motions for rehearing, except as stated in the rules relating thereto.

On July 11, 1947, thirty-nine days after the Court of Civil Appeals handed down its opinion and entered judgment affirming the judgment of the trial court, appellant tendered to the Court of Civil Appeals his motion for rehearing, and accompanied it with a motion in which he requested and prayed the court to permit his motion for rehearing to be filed. The motion sets up what he alleges to be good cause for his failure to file same within fifteen days after the rendition of the judgment and decision of the court. Attached to the motion is the affidavit of his attorney of record, in which it is shown that on the afternoon of June 10, 1947, while he was engaged in preparing the motion for rehearing, he was stricken with a severe attack of high blood pressure, which was followed by a stroke of apoplexy, and he was thereby rendered unconscious and blind. He was confined to his bed for many days, and was barely able to leave his bed at the time he prepared the motion on July 10, 1947. The motion and affidavit further state that the illness destroyed the ability of counsel to read or write, until a few days before the motion for rehearing was prepared, and the affidavit is supported by the sworn certificate of a physician who treated the attorney. The doctor's certificate was executed June 17, 1947, and in it he certified that the attorney was then confined to his bed, and in his opinion would be disabled for four to six weeks thereafter.

The record shows that the attorney who was sick was the only attorney representing appellant in the trial court and in the appeal. The record further shows that the appellant himself is an attorney at law, but the affidavit states he was out of the city and did not know when his counsel received the court's opinion or that the fifteen day period had expired.

We quote from the certificate of the Court of Civil Appeals as follows:

"Our construction of Rule No. 458 and Rule No. 5 is that, under their plain and unambiguous provisions, this Court is without authority to permit the filing of a motion for rehearing after the expiration of fifteen days from the date of rendition of the judgment or decision of this Court or to consider the same even though good cause for the delay might be shown. However, in the case of Teal v. State, Tex.Cr.App., 191 S.W.2d 684, upon consideration of the motion of the appellant for rehearing, the Court of Criminal Appeals held that the time for filing a motion for rehearing in that court is governed by the rules as applied in civil cases and that the appellant had not filed his motion within the fifteen days allowed by the rules. The opinion states that the appellant sought to excuse himself from timely filing his motion but that the proof offered in support thereof furnished no reason why he should not have filed his motion for rehearing within the time required by Rule 458. It is further stated in the opinion that `We are authorized to disregard such rule in the filing of motions for rehearing in this court only for exceptional reasons when the appellant is not to blame for the delay.' No such exceptional reason was shown and the court therefore dismissed the motion for rehearing.

"It will be seen that the holding of the Court of Criminal Appeals is to the effect that that court is governed by the rules of Civil Procedure and that its opinion indicates strongly, if, in fact, it does not hold directly, that the rules in question may be disregarded for exceptional reasons when the party seeking a rehearing is not to blame...