Wear v. McCallum, 4894.

• Decision Date: 20 December 1930
• Docket Number: No. 4894.,4894.
• Citation: 33 S.W.2d 723
• Parties: WEAR v. McCALLUM, Judge et al.
• Court: Texas Supreme Court

Page 723

33 S.W.2d 723

WEAR v. McCALLUM, Judge et al.

No. 4894.

Supreme Court of Texas.

December 20, 1930.

Petition for mandamus, on the relation of W. C. Wear, against Claude M. McCallum and others, to compel respondent named, as District Judge, to set aside a certain order theretofore made in a suit by relator against G. W. Lyles.

Writ granted.

Smithdeal, Shook, Spence & Bowyer, of Dallas, for relator.

William H. Flippen, John T. Gano, and John W. Miller, all of Dallas, for respondents.

PIERSON, J.

On March 22, 1927, relator, W. C. Wear, filed suit in the district court of Hill county against respondent G. W. Lyles, upon a certain promissory note executed by Lyles to one Wittliff, and indorsed in blank by Wittliff. Lyles in due time filed his plea of privilege to be sued in Dallas county. On May 3, 1927, the appearance day of the district court of Hill county, the plea of privilege was sustained, and the cause transferred to Dallas county, and was docketed in one of the district courts of Dallas county on May 9, 1927. On May 16, 1927, no answer having been filed to the merits, a judgment in favor of relator was rendered in the district court of Dallas county. Sixty days later, on July 16, 1927, Lyles, joined by respondent J. A. Feagin, filed in the cause a pleading designated by him as a motion for a new trial or a bill of review, in which he set up two particular items of fact, to wit: (a) He alleged that the amount of the judgment was incorrect, in that recovery was allowed in excess of the amount prayed for; (b) he alleged that the note sued on "was endorsed in blank by the said Mrs. Winnie M. Wittliff and surrendered to one J. A. Feagin, of Fort Worth, Tarrant County, Texas, who advanced moneys thereon, and which said note was attached as a collateral note for the sums so advanced by him; that he, the said Feagin, is the legal and equitable owner and holder of said note, and the only person entitled to sue thereon, that in making renewals of this original advancement and of others thereafter made by the said Feagin to the said Wittliff, the said Wittliff obtained wrongful possession of the note herein sued upon and upon which judgment herein has been granted, all without the knowledge or consent of the said Feagin; by reason whereof said judgment should be rendered null and void and of no force and effect." Said pleading concluded with a prayer as follows:

"That said judgment be set aside and his motion for new trial, or bill of review, granted, to the end that a fair and impartial trial may be had on the facts herein adduced, and to the end that justice may be done."

Relator filed exceptions to the pleading, and joined issue on the facts. A hearing was had by the Honorable Claude M. McCallum, District Judge, one of the respondents, and the following order was made:

"On this 31st day of August, A. D. 1927, came on to be heard the defendants' motion for new trial and/or bill of review. Whereupon came both parties in person and by their respective attorneys, and plaintiff's exceptions to defendants' motion being considered and overruled, and the court after hearing said motion read and the evidence and argument of counsel is of the opinion that same should be sustained as a bill of review, and that the judgment of the plaintiff against the defendant, heretofore rendered on the 16th day of May, A. D. 1927, and as entered in Vol. 32-541, of the Minutes of the Court, should be set aside and held for naught. It is therefore ordered, adjudged, and decreed that said bill of review be and it is hereby granted, and said judgment above referred to is hereby set aside and held for naught."

Relator Wear brought this suit in the Supreme Court, in which he alleges that said pleading of respondent Lyles is insufficient as a bill of review; that at most it is only a motion for a new trial, and as such it was filed too late, as the judgment had become final under the operation of law. He seeks a mandamus to require the district judge to set aside the order of August 31, 1927, and to enter one overruling said "motion."

We will first dispose of a major proposition of respondents that the judgment by default complained of herein was set aside by the court during the same term of court in which said judgment was rendered, and that respondent Claude M. McCallum, as judge of said court, "was vested with the discretion and inherent power to set aside said judgment."

That a trial court has control over his judgments until they become final judgments by operation of law, either by the termination of the term of court at which the...