Risher v. Risher, 19067

• Decision Date: 04 January 1977
• Docket Number: No. 19067,19067
• Citation: 547 S.W.2d 292
• Parties: Mary Jo RISHER, Appellant, v. Douglas RISHER, Appellee.
• Court: Texas Court of Appeals

Page 292

547 S.W.2d 292

Mary Jo RISHER, Appellant, v. Douglas RISHER, Appellee.

No. 19067.

Court of Civil Appeals of Texas, Dallas.

Jan. 4, 1977.

Rehearing Denied Feb. 18, 1977.

Frank W. Stenger, Mauzy & Stenger, Dallas, for appellant.

Mike McCurley, McGuire, Levy, Collins & McCurley, Irving, Barton E. Bernstein, Dallas, Ad Litem, for appellee.

GUITTARD, Chief Justice.

Appellee has moved to dismiss this appeal for lack of jurisdiction because the original motion for new trial was overruled by the court before the amended motion was filed and no appeal bond was filed within thirty days from that date. The problem arises from the trial judge's attempt to set aside the order overruling the original motion on the same date that it was signed and entered, but without signing a formal order setting it aside. We hold that the oral order setting aside the order overruling the original motion for new trial was not effective to extend the time for filing the amended motion and, therefore, that the appeal bond was filed late. Consequently, we sustain the motion to dismiss.

According to the transcript, the judgment was signed April 8, 1976, appellant's motion for new trial was filed April 18, and an order overruling the original motion was signed May 6, the nineteenth day after the original motion was filed. The transcript further shows an amended motion for new trial filed on May 6 and an order overruling the amended motion signed May 28. The appeal bond was filed on June 26, more than thirty days after signing the order overruling the original motion but within thirty days after the order overruling the amended motion.

The jurisdictional question arises because of the provision in Tex.R.Civ.P. 329b(2) that an "amended motion shall be filed before the original motion is acted upon and within twenty (20) days after the original motion for new trial is filed." If the order overruling the original motion was valid and was not effectively set aside, the amended motion for new trial, although filed within twenty days after filing the original motion, was not timely, and the period for filing the bond began to run when the original motion was overruled.

Presentment of Motion for New Trial

Appellant contends that the order overruling the original motion for new trial was a nullity because she did not present the motion to the court. In support of this argument appellant submits an affidavit of the trial judge stating that appellant's original motion for new trial was set for a hearing on May 6 at the request of appellee's counsel and that at the hearing on that date, appellee's counsel was present and appellant's counsel was not. Appellant's counsel admits that he had notice of the setting and deliberately failed to appear, evidently on the theory that if he did not present the motion the court would have no authority to rule on it. Appellant makes that contention here, arguing that since Rule 329b(4) provides that it is the duty of the moving party to present a motion for new trial within thirty days after filing, the court cannot act on the motion unless the moving party presents it.

This argument is untenable under the decision of the supreme court in University of Texas v. Morris, 163 Tex. 130, 352 S.W.2d 947, 949 (Tex.1962). In that case, the motion for new trial was overruled by the trial judge on his own motion, presumably without presentment, on the very day it was filed. The supreme court held that the requirement that the motion be "presented" within thirty days means nothing more than that the movant must call the motion to the court's attention and ask for a ruling or face the possibility that the court will not act and will allow the motion to be overruled by operation of law. Thus, the court held that the order overruling the motion was effective.

Appellant argues that the Morris case may be distinguished by the fact that the only question presented in that case was one of law and by the circumstance that the judge was going out of office on the day the motion was filed. Notwithstanding the peculiar facts of Morris, we regard that decision as standing for the rule that the movant's failure to present his motion does not deprive the court of authority to rule on it. Consequently, although we recognize the force of appellant's argument that the moving party may not know when his time for appeal has begun to run unless he has presented his motion, we cannot rest our decision on this ground. In this respect the present case is even less favorable to the appellant than Morris because here appellant's counsel had notice that the motion was set for hearing and is in no position to complain that he did not know when his motion was ruled on. We conclude that the court may properly set a hearing on a motion for new trial on the request of either party and that the court has authority to rule on it at the time set, whether or not the movant appears to present it. Consequently, we cannot sustain jurisdiction of this appeal on the ground that the order overruling the original motion for new trial was a nullity and did not prevent later filing of an amended motion for new trial. We turn, therefore, to consideration of whether that order was effectively set aside by the trial court's oral order on the same day.

Effect of Oral Order

Appellant contends that by the oral order the court effectively set aside the order overruling the motion for new trial and left the situation, for purposes of appeal, as if the original motion had not been acted on. If the oral order had this effect, the filing of the amended motion was timely, and the beginning of the thirty-day period for filing the bond did not begin to run until the amended motion was overruled on May 28. We consider first whether such an order, whether oral or written, could have the effect of extending the time for filing an amended motion. We conclude that it could not have that effect because of the restriction in Tex.R.Civ.P. 5, which provides that the court "may not enlarge the period for taking any action under the rules relating to new trials . . . or the period for taking an appeal or writ of error from the trial court to any higher court . . . ."

Appellant argues that the court had power to set aside its order under authority of cases such as Thompson v. Gibbs, 504 S.W.2d 630, 632 (Tex.Civ.App. Dallas 1973, mandamus overruled), holding that under Rule 329b(5) the trial court has power over its judgments until expiration of thirty days after the motion for new trial is overruled.

The difficulty with this argument is that although a trial judge admittedly has power to grant a new trial within thirty days after signing an order overruling the motion, the quoted language of Rule 5 forbids any enlargement of the time for filing a motion for new trial or taking an appeal. Because of this restriction, the trial judge cannot extend the time for appeal by entertaining and overruling a tardy motion for new trial even though the ruling is made within the time that the court could have granted a new trial. A. F. Jones & Sons v. Republic Supply Co., 151 Tex. 90, 246 S.W.2d 853, 855 (Tex.1952). Neither can the judge accomplish the same result by setting aside his judgment and entering a new judgment so that a motion for new trial may be filed within ten days after entry of the new judgment. Chantre v. National Maritime Union Pension & Welfare Plan, 425 S.W.2d 659 (Tex.Civ.App. Beaumont 1968, no writ). Moreover, if the judge grants a new trial within forty-five days after the motion is filed, he cannot set aside that order and reinstate the original judgment because this action, also, would violate the restriction in Rule 5 against enlarging the time for filing a motion for new trial. Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 826 (Tex.1961). On the same reasoning, we conclude that the judge cannot enlarge the time for filing the amended motion by setting aside his order overruling the original motion, whether the order setting it aside is oral or written.

Appellant argues that the oral order was effective because the order overruling the original motion for new trial was not set aside for the purpose of extending the time for filing the amended motion, but rather because the judge determined that he had acted under a mistake when he overruled the original motion. The judge's affidavit shows that when he acted on the motion he did not know that the hearing had been set at the request of appellee's counsel or that appellant desired to file an amended motion. The affidavit goes on to state that later on the same day the court was informed by appellant's counsel that the original motion had been set for a hearing by appellee's counsel, that appellant desired to file an amended motion for new trial, and that the twenty days for filing the amended motion had not expired. Accordingly, the judge states that he "entertained an oral motion by appellant's counsel to set aside the court's order overruling the original motion for new trial." After a telephone conversation with appellee's counsel, the judge announced that he was setting aside the order overruling the motion, and he then entered on the docket the following notation: "Order overruling motion for New Trial set aside by the court, Oswin Chrisman." The affidavit further shows that after this notation was made, appellant's counsel filed the amended motion for new trial.

No written order setting aside the order overruling the original motion for new trial was filed until after the question of jurisdiction was raised in this court. At that time appellant filed an application for entry of the order nunc pro tunc, which the trial court at first denied. Appellant then applied to this court for a writ of mandamus directing the trial court to enter the order. This court granted the mandamus on the ground that a proper entry of the order was necessary to determination of this court's jurisdiction. The trial judge...