Townes v. Lattimore

• Decision Date: 13 May 1925
• Docket Number: (No. 6451.)
• Citation: 272 S.W. 435
• Parties: TOWNES v. LATTIMORE et al.
• Court: Texas Supreme Court

Page 435

272 S.W. 435

TOWNES v. LATTIMORE et al.

(No. 6451.)

Supreme Court of Texas.

May 13, 1925.

Application by J. W. Townes for leave to file a petition for mandamus against Hal S. Lattimore, Judge of the Ninety-Sixth Judicial District Court of Tarrant County and others. Refused.

Burgess, Burgess, Sadler, Chrestman & Brundidge, of Dallas, for relator.

CURETON, C. J.

This cause is before us on application for leave to file a petition for mandamus against the honorable H. S. Lattimore, judge of the Ninety-Sixth judicial district court of Tarrant county and other parties.

Mr. and Mrs. E. A. White, respondents herein, brought suit against J. W. Townes in the district court named. On November 27, 1923, verdict and judgment was rendered to the effect that they take nothing by their suit. On November 30, 1923, they filed their original motion for a new trial in the cause, praying the court to set aside the judgment and grant them a new trial. This motion was never presented to the court nor acted upon by him, but on the 2d day of January, 1924, without leave of the court first had, the respondents filed their first amended original motion for a new trial. On the 4th day of January the relator, Townes, filed objections to a consideration of the amended motion for a new trial, and moved to strike it out. The court overruled the objections and motion to strike out, and granted a new trial on the amended motion. The contention was there made, and is here insisted on, that the amended motion was not filed in the time and in the manner required by the Act of the 38th Legislature, hereafter referred to, in that the amended motion was filed more than 20 days after the filing of the original motion, and without leave of the court. By reason of these facts it was and is insisted that, under the law, the original judgment became final at the end of 30 days from its date, and that the trial court was without jurisdiction and power to act on the amended motion for new trial. The prayer is made here for a mandamus to Judge Lattimore, commanding him to give force and effect to the judgment of November 27, 1923, and proceed no further with the cause so long as that judgment remains unreversed.

Chapter 105, General Laws of the 38th Legislature, amended title 37 of the Revised Statutes of the state by adding thereto chapter 12a, relating to procedure in civil district courts in counties having two or more district courts with civil jurisdiction only, and whose terms continue three months or longer. The Ninety-Sixth district court, of which Judge Lattimore is the judge, comes within the provisions of this act. So much of this act as is pertinent to the present inquiry is contained in section 1, subds. 14 to 16, inclusive, of chapter 105. These subdivisions read as follows:

"Subd. 14. A motion for new trial filed during one term of court may be heard and acted on at the next term of court. If a case or other matter is on trial or in process of hearing when the term of court expires the trial or hearing or other matter in process when the term expires may be proceeded with at the next term of the court just as if they were the same term of court. No motion for new trial or other motion or plea shall be considered as waived or overruled because not acted on at the term of court at which it was filed, but may be acted on at the succeeding term or any time which may be fixed by the judge, or to which it may have been postponed or continued by agreement of the parties with leave of the court. All motions and amended motions for new trials shall be presented within thirty days after the original motion or amended motion for new trial is filed and shall be determined within not exceeding forty-five days after the original motion or amended motion is filed, unless by written agreement of the parties filed in the case the decision of the motion is postponed to a later date.

"Subd. 15. A motion for new trial, where required, shall be filed within ten days after the judgment is rendered or other order complained of is entered, and may be amended by leave of court at any time within twenty days after it is filed before it is acted on.

"Subd. 16. Judgments of such civil district courts shall become as final after the expiration of thirty days after the date of judgment or after a motion for new trial is overruled as if the term of court had expired. After the expiration of thirty days from the date the judgment is rendered or motion for new trial is overruled the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law for the filing of bills of review in other district courts."

Subdivision 15 requires that motions for a new trial be filed within 10 days after the judgment is rendered, and provides that such original motion may be amended by leave of the court at any time within 20 days after it is filed before it is acted upon.

It is apparent from the record which accompanies the motion in this proceeding that the original motion for new trial was filed within the statutory period, but that the amended motion for new trial was filed longer than 20 days after the filing of the original motion, and without leave of the court. The question is, notwithstanding the failure to comply with this statute, did the district court have jurisdiction to consider and act upon the amended motion for new trial?

Subdivision 14, quoted above, provides that all motions and amended motions for new trial shall be presented within 30 days after the original motion or amended motion for new trial is filed, and shall be determined within not exceeding 45 days after the original motion is filed, undess by written agreement of the parties filed in the case...