Tunstill v. Scott, 14634.

• Citation: 182 S.W.2d 734
• Decision Date: 08 September 1944
• Docket Number: No. 14634.,14634.
• Parties: TUNSTILL et al. v. SCOTT.
• Court: Texas Court of Appeals

182 S.W.2d 734

TUNSTILL et al. v. SCOTT.

No. 14634.

Court of Civil Appeals of Texas. Fort Worth.

September 8, 1944.

Rehearing Denied October 13, 1944.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Action by Naomi Scott against W. A. Tunstill and others. Verdict and judgment for plaintiff, defendants' motion for new trial was overruled, and defendants appeal.

Appeal dismissed and judgment affirmed on certificate.

See also, Tex.Civ.App., 164 S.W.2d 554.

H. S. Lattimore, of Fort Worth, for appellants.

Clark, Craik, Burns & Weddell, of Fort Worth, for appellee.

BROWN, Justice.

We are confronted with a motion to dismiss this appeal because of the lateness with which the record was filed.

Judgment was rendered in the trial court on January 10th, 1944.

Under the rules obtaining in the County of Tarrant, where there are four District Courts having jurisdiction over civil cases, the motion for a new trial should be filed within ten (10) days after judgment is rendered. The original motion was filed on January 14, 1944, and the defendants attempted to amend such original motion by filing the amended motion on February 14, 1944.

Rule 330, subdivision k, Texas Rules of Civil Procedure, specifically provides that the motion for a new trial, where it is required, and in such a case as the one at bar, wherein judgment was rendered on a jury verdict, must be filed within ten (10) days after judgment is rendered, and further specifically requires that such original motion may be amended by leave of the court at any time before the original motion is acted upon by the trial court provided the amended motion is filed within twenty (20) days after the filing of the original motion.

Thus it is seen that the amended motion should have been filed not later than February 3rd, 1944, in order to comply with the Rule. In the instant suit, the amended motion was filed on the thirty-first (31st) day after the original motion was filed, and even if the trial court had had the discretion to permit its filing within the thirty day period after the judgment had been rendered, it is obvious that the amended motion came too late. But the trial court made no effort to act upon either the original or the amended motion until February 26, 1944, when the following order was made:

"On this February 26th, 1944, came on to be heard the defendant's motions for a new trial and it appears to the court that judgment was rendered against defendants in this court on January 10th, 1944, and that the defendants duly and regularly filed their motions for a new trial and that thereafter in due and proper time, the said defendants filed their amended motions for a new trial and that the said motions were seasonably presented to this court and decision thereon taken under advisement, and the court, after carefully considering same, is of the opinion that each should be overruled.

"It is therefore ordered:

"That the motions for a new trial of the defendants, W. A. Tunstill, Eula Tunstill and G. G. Tunstill be, and the same are hereby overruled, to which the said defendants except and give notice of appeal to the Court of Civil Appeals for the Second Supreme Judicial District of Texas."

Subdivision j of said Rule 330 specifically provides that all motions and amended motions for new trials must be presented within thirty (30) days after the original or amended motion is filed and must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, unless by written agreement of the parties, the decision is postponed to a later date.

There is no agreement in this record touching such matters.

Judge Smedley speaking for the Commission of Appeals in an opinion adopted by the Supreme Court, in the case of Dallas Storage & Warehouse Co. et al. v. Taylor, District Judge et al., 124 Tex. 315, 77 S.W.2d 1031, went thoroughly into every phase of the subject before us, and what is said there is the settled law in Texas.

The amended motion before us is a nullity, and the order of the trial court attempting to act or pass upon the amended motion is likewise a nullity, and can form no basis for an appeal. See also Millers Mutual Fire Ins. Co. of Texas v. Wilkirson et al., 124 Tex. 312, 77 S.W.2d 1035, and Independent Life Ins. Co. of America v. Work, District Judge, et al., 124 Tex. 281, 77 S.W.2d 1036.

The amended motion being a nullity, we would not hold that the filing of such abortive motion is in itself an abandonment of the original motion which last named motion was timely filed, but we do believe that the record is such that it shows on its face that the appellants in fact abandoned their original motion for a new trial.

But be that as it may, under the decisions, of our Supreme Court, it is apparent that if the original motion was not in fact abandoned, it was not presented to the trial court within thirty (30) days after it was filed, and it was overruled by operation of law on such thirtieth (30th) day, that is, on February 13th, 1944, and under Rule 386 it was necessary for the appellant to file his transcript in the Court of Civil Appeals within sixty (60) days after February 13th, 1944. The transcript was tendered to the Clerk of the Court of Civil Appeals on April 15, 1944, which was sixty-two (62) days after the original motion was overruled by operation of law.

There was no motion made to extend the time for filing the transcript.

The motion to dismiss the appeal is well taken, and the appeal is hereby dismissed.

This brings us to appellee's motion to affirm on certificate.

Under such rulings as found in Moeller et ux. v. Travelers Ins. Co., Tex. Civ.App., 142 S.W.2d 613, opinion by Mr. Chief Justice Alexander; Beaver v. Beaver, Tex.Civ.App., 57 S.W.2d 279; Texas State Life Ins. Co. v. Adams Funeral Home, Inc., Tex.Civ.App., 129 S.W.2d 322, and Texas State Life Ins. Co. v. Robinson, Tex.Civ.App., 128 S.W. 2d 839, Mr. Justice Speer speaking for this Court, we sustain the motion and the judgment is affirmed as against appellants and the sureties on their appeal bond, said bond having been filed within the proper time.

Appeal dismissed and the judgment of the trial court is affirmed on certificate.

McDONALD, C. J., not sitting.

On Motions for Rehearing.

BROWN, Justice.

Appellants W. A. Tunstill and Granville Tunstill have filed identical motions for a rehearing in this cause, and we deem it necessary to go at length into the record in order to make plain appellants' contentions under the record, as it appears before us, and in order to show the facts that are found on the face of the record.

Appellants' motions, after urging that the Court of Civil Appeals erred in sustaining appellee's motion to affirm on certificate, and erred in dismissing the appeal, then urge:

(III) "This court erred in dismissing the appeal of this appellant and in holding in connection therewith that the order of the 48th District Court in said cause overruling the motion for a new trial was an unqualified falsehood."

(IV) "This court erred in dismissing the appeal of this appellant and in holding in connection therewith that appellant had abandoned in the trial court, his original motion for a new trial."

(V) "This court erred in dismissing the appeal of this appellant and in holding in connection therewith that the original motion for a new trial was not presented to the trial judge within thirty days after its filing."

(VI) "This Court of Civil Appeals erred in dismissing this appellant's appeal and in holding in connection therewith, that the original motion for a new trial of this appellant in the trial court was overruled on the thirtieth day after its filing."

(VII) "This Court of Civil Appeals erred in holding that the order of the judge of the 48th District Court was false which certified and found that this appellant's motion for a new trial was seasonably presented and taken under advisement."

(VIII) "This Court of Civil Appeals erred in holding that the order overruling appellant's original motion for a new trial was ineffectual because entered on February 26, 1944, which order was granted and entered less than forty-five days from the filing of the original motion for a new trial and which order certified that appellant's motion for a new trial was seasonably presented and taken under advisement."

As stated in our original opinion, judgment was rendered on January 10, 1944, and the original motion for a new trial was filed on January 14, 1944.

The original motion is as follows:

"I. The verdict is contrary to the law and the evidence.

"II. The judgment of the court is contrary to the law and the evidence.

"III. The court erred in overruling the defendants' exceptions to the charge.

"IV. The court erred in overruling the defendants' motion for an instructed verdict.

"V. The court erred in overruling defendants' motion to set aside the verdict.

"VI. The court erred in failing to make findings of fact in connection with the judgment rendered.

"VII. The evidence is insufficient to support the verdict or the judgment.

"Wherefore each of the defendants pray the court to grant a new trial."

The motion is signed by counsel as "Attorney for the Defendants."

There is no other original motion for a new trial in the record before us and no one has attempted to bring any other such motion up to us and the very wording of the motion discloses on its face that it was the only motion for a new trial filed in the case by any of the three defendants, and it affirmatively appears on the face of the motion that it was filed as the original motion for a new trial for and in behalf of "each" and all of the defendants.

The record discloses that on February 14, 1944, an amended motion for a new trial was filed, and it begins with the following words: "Herein come the defendants in this amended motion for a new trial and each separately make the following grounds for such motion."

This ...