| Tex. | Jul 1, 1873
At the November term, 1870, of the District Court, appellant obtained a judgment by default against the appellee. A motion for a new trial was filed at that term, but not acted upon by the court. At a subsequent term another motion for a new trial was filed, and this motion also was not acted upon during the term at which it was filed, but at the following term an amended motion was filed and acted upon by the court, and a new trial awarded. At a subsequent term of the court the plaintiff moved the court to set aside the order granting a new trial, and to award execution on the original judgment, which was overruled, and from this judgment of the court an appeal has been taken. This court has frequently decided that the'exercise of a legal discretion by the District Court in granting new trials was not a subject for revision by an appellate court. But this rule should be confined to the legitimate exercise of that discretion, and while the court has jurisdiction of the subject matter and the parties at interest.
The statute provides that motions for new trials shall be made within two days after the rendition of the verdict, and that all motions for new trials shall be determined at the term of the court at which such motion shall be made. In McKeen v. Ziller, 9 Tex., 58" court="Tex." date_filed="1852-07-01" href="https://app.midpage.ai/document/mckean-v-ziller-4887634?utm_source=webapp" opinion_id="4887634">9 Texas, 58, this court decided that “the mandate of the law is peremptory and must be obeyed, and that at the end of the term the motion, not having been acted on, was discharged by operation of law.” This decision has been followed by this court without a known exception, and must now be considered as the established law of the State.
After the close of the term the court loses all jurisdiction over its final judgments, and has no power to vacate the same, excepting by an original proceeding for that purpose, by’petition or bill, setting forth sufficient equita
The case of McKeen v. Ziller is quite similar to the one at bar, and is decisive of the law of this cause. We therefore adopt the language of the court in that case, in deciding that “the court erred in refusing to set aside the proceedings subsequent to the judgment, and to award execution; that the judgment be therefore reversed, and such judgment be rendered as the court below ought to have rendered.”
Reversed and reformed.