University of Tex. v. Morris

Decision Date10 January 1962
Docket NumberNo. A-8624,A-8624
Citation352 S.W.2d 947,163 Tex. 130
PartiesThe UNIVERSITY OF TEXAS et al., Petitioners, v. Chester R. MORRIS, Respondent.
CourtTexas Supreme Court

Will Wilson, Atty. Gen., Lawrence Hargrove and Pat Bailey, Asst. Attys. Gen., Taylor & Taylor, Austin, for petitioner.

Chester R. Morris, pro se.

CULVER, Justice.

Respondent, Morris, brought this suit in damages for false imprisonment, deprivation of liberty without due process of law, libel and conspiracy against The State of Texas, The University of Texas and certain officials and employees of the University. The suit grew out of a temporary commitment of Morris to the Austin State Hospital and certain alleged related occurrences. The trial court rendered summary judgment in favor of the petitioners. The Court of Civil Appeals reformed the judgment of the trial court in one particular and affirmed it as reformed. 348 S.W.2d 644.

The petitioners assert that the Court of Civil Appeals erred in refusing to dismiss the appeal for want of jurisdiction for the reason that the same was not timely perfected.

Petitioners' motion for summary judgment was heard before Judge Gardner of the 53rd District Court of Travis County on the 22nd day of December, 1960. He entered judgment granting the motion on the 29th day of December. It contained the recitation that Morris excepted and gave notice of appeal. On December 30th Morris filed a motion for new trial which was overruled by Judge Gardner on the same day. The motion for new trial was verified by Morris on the 27th day of December, 1960, evidencing the fact that the judge indicated in open court his decision to grant the motion for summary judgment prior to the actual entry of the judgment.

Judge Gardner's term of office ended on the 1st day of January, 1961, and on that date he was succeeded by the Honorable Herman Jones. On the 16th day of January, 1961, Judge Jones, evidently at the request of Morris, set for hearing Morris' motion for new trial for the 27th day of January. On the 27th day of January Morris filed a motion to set aside the order of December 30th, 1960, entered by Judge Gardner overruling respondent's motion for new trial.

On that date, namely, the 27th day of January, 1961, Judge Jones entered the following order:

'On this 27th day of January, 1961 came on to be heard the Motion of Plaintiff Chester R. Morris, styled 'Motion to Set Aside Purported Final Judgment', to set aside the Court's Order of December 30, 1960 entered by The Honorable J. Harris Gardner, Judge, which Order overruled Plaintiff's Motion for New Trial. It appearing to the Court that such Order is entirely regular on its face, it is accordingly.

'ORDERED that Plaintiff's Motion to set aside said Order is in all things overruled and that the Court's Order of January 16, 1961, setting a date for hearing on Plaintiff's Motion for New Trial, is hereby set aside and held for naught, such Motion for New Trial having been overruled before Plaintiff's request for hearing on such Motion was presented to the Court.'

Respondent then filed his affidavit in lieu of appeal bond of February 2, 1961.

Petitioners' motion to dismiss was based on the failure of Morris to file his affidavit within 20 days after the order overruling the motion for a new trial as provided by Rule 356, Rules of Civil Procedure.

The Court of Civil Appeals held that the order of December 30, 1960, overruling Morris' motion for new trial was arbitrary and is null and void and accordingly overruled the motion to dismiss the appeal for want of jurisdiction. We hold that the order was not null and void. Therefore, the affidavit in lieu of cost bond was not timely filed and the appeal should have been dismissed.

The Court of Civil Appeals takes the position that the action of the court in overruling the motion was arbitrary and void because the respondent was deprived of an opportunity to present his motion to the court and bases its secision on its interpretation of Rule 329b, § 4, which provides that 'It shall be the duty of the proponent of an original or amended motion for new trial to present the same to the court within thirty (30) days after the same is filed.' The rule further provides:

'In the event an original motion or amended motion for new trial be not presented within thirty (30) days after the date of the filing thereof, and the (district) judge in his discretion refuses to consider the same or refuses to hear evidence relating thereto, 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.'

The Court of Civil Appeals holds that the rule places upon the movant for a new trial the duty 'to present the same to the Court' and by the same token places the duty upon the trial judge...

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17 cases
  • Texaco, Inc. v. Pennzoil, Co.
    • United States
    • Texas Court of Appeals
    • February 12, 1987
    ...new trial motion when the motion presents solely questions of law. Moore v. Mauldin, 428 S.W.2d 808 (Tex.1968); University of Texas v. Morris, 163 Tex. 130, 352 S.W.2d 947 (1962), cert. denied, 371 U.S. 953, 83 S.Ct. 511, 9 L.Ed.2d 503 (1963). However, Texaco asserts that the following are ......
  • Ortiz v. O. J. Beck & Sons, Inc.
    • United States
    • Texas Court of Appeals
    • December 18, 1980
    ...that charges parties and lawyers alike with notice of all orders and judgments rendered in a case. See University of Texas v. Morris, 163 Tex. 130, 352 S.W.2d 947 (1962); Mayad v. Rizk, 554 S.W.2d 835 (Tex.Civ.App. Houston (14th Dist.) 1977, writ ref'd n.r.e.); Pentikis v. Texas Electric Se......
  • Cecil v. Smith
    • United States
    • Texas Supreme Court
    • February 27, 1991
    ...to the error alleged and request a ruling. Moore v. Mauldin, 428 S.W.2d 808, 809 (Tex.1968) (per curiam); University of Texas v. Morris, 163 Tex. 130, 133, 352 S.W.2d 947, 949 (1962). The rule did not require a request for a hearing when it would only be an empty formality, e.g. where the t......
  • Risher v. Risher, 19067
    • United States
    • Texas Court of Appeals
    • January 4, 1977
    ...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 witho......
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