W. C. Turnbow Petroleum Corporation v. Fulton

• Decision Date: 10 April 1946
• Docket Number: No. A-758.,A-758.
• Citation: 194 S.W.2d 256
• Court: Texas Supreme Court
• Parties: W. C. TURNBOW PETROLEUM CORPORATION v. FULTON.

Page 256

194 S.W.2d 256

W. C. TURNBOW PETROLEUM CORPORATION v. FULTON.

No. A-758.

Supreme Court of Texas.

April 10, 1946.

Rehearing Denied May 22, 1946.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action on a debt by Edwin M. Fulton against W. C. Turnbow Petroleum Corporation. From an adverse judgment, defendant appealed to the Court of Civil Appeals which sustained a motion to dismiss the appeal and the defendant brings error.

Judgment of the Court of Civil Appeals reversed and cause remanded.

H. P. Smead, of Longview, and Clay Cooke, of Ft. Worth, for petitioner.

Florence, Florence & Meredith, of Gilmer, and Vinson, Elkins, Weems & Francis and C. E. Bryson, all of Houston, for respondent.

SMEDLEY, Justice.

The action is for debt brought by respondent against petitioner. The case was tried by the court without a jury, and after overruling petitioner's plea to the jurisdiction, the court, on March 30, 1945, rendered judgment for respondent against petitioner for $3,704.62. Petitioner, on April 3, 1945, filed a formal motion for new trial containing allegations of errors in general terms. On April 23, 1945, petitioner filed an amended motion for new trial containing many grounds of error alleged with particularity. The transcript does not show that leave of court was obtained to file the amended motion. It contains an order of the trial court, made May 21, 1945, reciting that petitioner's motion for new trial was on that day presented to the court in due manner and form and with due notice, and overruling the motion. The order contains a recital that petitioner excepted and gave notice of appeal. Petitioner's appeal bond was filed in district court on June 18, 1945, and the transcript and statement of facts were filed in the Court of Civil Appeals on July 19, 1945.

Respondent, appellee in the Court of Civil Appeals, filed in that court a motion to dismiss the appeal on two grounds: That the appeal bond was not filed within the time required by the Texas Rules of Civil Procedure, and that the record was not filed in the Court of Civil Appeals within the time required by the Rules of Civil Procedure. The motion shows that the contention of respondent was and is that the amended motion for new trial was a nullity because it was filed without leave of court, that the original motion for new trial was overruled by operation of law on May 3, 1945, that is, on the expiration of thirty days from April 3, when it was filed, and that the appeal bond should have been filed in the trial court within thirty days and the transcript and statement of facts should have been filed in the Court of Civil Appeals within sixty days from May 3, 1945. Rules 356, 386. The motion to dismiss also directs attention to the fact that the amended motion for new trial was not signed by petitioner or by his attorneys. The Court of Civil Appeals, without writing an opinion, rendered judgment sustaining the motion and dismissing the appeal for want of jurisdiction.

Since the district court of Upshur County has successive terms in said county throughout the year, the applicable rules of practice and procedure in civil actions are those set out in the several subdivisions of Rule 330, which subdivisions, except for a few minor changes, are the same as the several sections of Article 2092 of the Revised Civil Statutes. It is provided by subdivision (k) of Rule 330 that the motion for new trial shall be filed within ten days after the judgment is rendered, and that it may be amended by leave of court at any time before it is acted on within twenty days after it is filed; and by subdivision (j) that the motion for new trial, whether original or amended, must be presented within thirty days after it is filed and must be determined within forty-five days after it is filed, unless by written agreement the decision of the motion is postponed to a later date.

Rule 320, in the language of Article 2232 of the Revised Civil Statutes, provides that motions for new trial "shall be in writing and signed by the party or his attorney." Pleadings are required by Rule 45, formerly Article 1997, to be in writing and signed. Counsel should sign their names to motions and pleadings "to make themselves responsible for what is stated in them, and so as to leave no doubt as to the parties for whom they appear." Simmons v. Fisher, 46 Tex. 126, 129. But it has often been held that the signature to a pleading is a formal requisite and that failure to comply with the requirement is not fatal to the pleading. Boren v. Billington, 82 Tex. 137, 138, 18 S.W. 101; Fidelity & Casualty Co. v. Lopatka, 24 Tex.Civ. App. 536, 60 S.W. 268; O'Donnell v. Chambers, Tex.Civ.App., 163 S.W. 138, application for writ of error refused; Shipp v. Anderson, Tex.Civ.App., 173 S.W. 598; Simmons v. Fisher, 46 Tex. 126, 129.

The amended motion for new trial filed in the instant case recites that it is filed in behalf of the defendant, and that it is intended to amend the original motion for new trial, which was signed by both of the attorneys for the defendant. At the end of the amended motion there are two blank lines, under which appear the words "Attorneys for Deft. W. C. Turnbow Petroleum Corporation". The court would not be justified in treating this motion as a nullity merely because counsel failed to sign their names to it. Of course, the trial court may require counsel to sign a pleading or motion that has been filed unsigned.

The more serious contention made by respondent in support of his motion to dismiss the appeal is that the amended motion was of no effect whatever because it was filed without leave of court. It is insisted that the obtaining of leave to amend is a mandatory requirement. Dallas Storage & Warehouse Co. v. Taylor, 124 Tex. 315, 77 S.W.2d 1031, 1034, is cited. The opinion in that case, in discussing section 29 of Article 2092, now subdivision (k) of Rule 330, contains the following: "Subdivision 29 in exact and particular language defines the conditions upon which a motion for new trial may be amended. They are: First, that leave of court must be obtained; second, that it can be amended only before it is acted upon; and third, that the amendment must be made within 20 days after the filing of the motion. Only on these terms is amendment permitted". This language is positive and seems intended to mean that the requirement as to obtaining leave is mandatory. It is perhaps more positive in respect to the question of leave to amend than is justified by the words of the section or subdivision, which are that the motion "may be amended by leave of the court." The words quoted from the opinion are followed by the statement that "We therefore construe subdivision 29 to mean, since the amendment of subdivision 28, that an amended motion for new trial must be filed within 20 days after the original motion is filed, and that no amended motion may be filed after the expiration of that period." That case involved no question as to leave to amend. The parties who filed the amended motion asked and were granted leave to file it, but the amended motion was filed more than twenty days after the filing of the original motion. The contention made in that case by the relators was that the provisions of section 28, even after its amendment, and of section 29, fixing the time within which an amended motion for a new trial may be filed, and must be presented and determined, were directory and not mandatory. The decision was that the provisions as to time were mandatory and that because the amended motion was filed too late, and after the original motion for new trial had been overruled by operation of law, the trial court had no authority either to permit its filing or to pass upon it.

We do not mean to encourage failure to obtain leave to amend, or to intimate that it is not important that it be obtained. In the interest of orderly practice and to give the opposing party notice of the intention to amend and to afford the trial court the opportunity, for good reason and under proper...