124 S.W.2d 420 | Tex. App. | 1939
This is an appeal from a judgment, in a proceeding in the nature of a bill of review, setting aside an order of the same court authorizing the adoption of Janice Nell Carpenter by her maternal grandmother, Mrs. Ola Fitts. The suit was instituted by Allen Lawrence Carpenter, the father and only surviving parent of Janice Nell Carpenter. The plaintiff, among other things, alleged in substance that the judgment of adoption of his daughter by Mrs. Fitts was procured without his consent; that he had no notice of the adoption proceeding, and that this suit to annul the judgment of adoption was instituted by him as soon as possible after he learned of that judgment.
Upon a trial the court submitted to the jury one issue which called for a finding as to whether or not plaintiff in writing consented to the adoption of his daughter by Mrs. Fitts. The jury was unable to agree upon an answer to the issue submitted. The jury was discharged and the court rendered judgment setting aside and annulling the judgment of adoption. From this judgment Mrs. Fitts has appealed.
Our statute (Art. 46a, § 6, Vernon's Ann.Civ.St., Acts 1931, 42d Leg., c.
Defendant complains of the action of the court in rendering judgment setting aside the order of adoption after the issue of consent of the parent to the adoption had been submitted to the jury and the jury had failed to answer the issue. From what has been said it is apparent that the question whether plaintiff had in writing consented to the adoption of his daughter by Mrs. Fitts was the issue, or, at least, an essential issue, made by the pleadings.
In Mills v. Mills, Tex.Com.App.,
In accord with the general rule above stated, we think, we should presume, in the absence of a contrary showing, that the trial court, after submission of said issue to the jury and its failure to agree, concluded he was in error in submitting the issue to the jury because the uncontradicted evidence established plaintiff's right to have the judgment of adoption set aside. If the evidence did not conclusively establish that plaintiff had not consented in writing to the adoption of his daughter, or, stated differently, if there was a dispute in the evidence as to any material fact in issue, such fact is not shown by plaintiff-in-error's brief.
In Houston Nat. Bank v. Adams et al., Tex. Civ. App.
In Handy v. Olney Oil Refining Co., Inc., Tex. Civ. App.
"While it is well settled that the court may continue the case for another trial after the jury has failed to agree on a verdict and has been discharged, we have been cited to no statute, and have found none, which specifically denies the trial court authority to render a judgment in the case on the pleadings and evidence introduced after it has been tried and the jury discharged, if the evidence introduced was insufficient, as a matter of law, to support a judgment for plaintiff or conclusively establish a defense to plaintiff's suit, and for that reason the court could properly have instructed a verdict in the first instance. * * *
"It is a well-settled general rule that the judge of the trial court retains jurisdiction to alter or change any rulings made by him during the same term of court if in his discretion such change is necessary to do justice to the parties, provided such change is not inhibited by a provision of the statutes or Constitution. And we are cited to no statute or provision of the Constitution or rule of decisions in this state which deprives the trial court of authority to render a judgment such as is complained of in this case under the circumstances related.
"No contention is made by appellant, by any assignment of error or proposition in his briefs, that evidence was introduced sufficient to sustain findings by the jury of the alleged negligence of the defendant proximately causing plaintiff's injury and also of damages claimed to have been sustained by him as a result thereof.
"It is apparent from the record that the action of the trial court in rendering judgment for the defendant was based on his conclusion that the evidence introduced was insufficient, as a matter of law, to show liability of the defendant for the damages sued for. In the absence of any assignment of error challenging the correctness of that finding, it must be accepted here as correct. It follows, therefore, that appellant has suffered no injury by reason of the judgment, and therefore has shown no reversible error, at all events. See rules 24 and 32 for Courts of Civil Appeals; *423
Natkin Eng. Co. v. Aetna Casualty Surety Co. (Tex.Com.App.)
See also McElhinney v. Swepston, Tex. Civ. App.
(While we believe the judgment in Wagstaff v. North British Merc. Ins. Co., Tex. Civ. App.
Under the situation disclosed by this record it is not our duty to examine the statement of facts to ascertain whether or not the undisputed evidence authorized the action of the trial court in rendering judgment for plaintiff. Adams v. Houston Nat. Bank, Tex.Com.App.,
Error is assigned to rendition of a "judgment non obstante veredicto upon the failure of the jury to answer a material issue submitted to it." While there is one sentence in the judgment indicating that it is such a judgment, the judgment as a whole, and plaintiff's motion for judgment, show that it is not a judgment non obstante veredicto. The judgment shows that the cause was submitted to the jury upon one special issue, that the jury failed to agree and was discharged and thereafter the court, on plaintiff's motion, rendered judgment. There is no motion for judgment non obstante veredicto, and no notice of such a motion in the record.
Article 2211, R.S., Vernon's Ann.Civ.St. art.
Therefore, if the action of the court in rendering judgment for plaintiff annulling the order of adoption, after the submission of the issue of consent to the jury and the jury's failure to agree on the answer thereto, constituted error, it is, for the reasons stated, shown to have been harmless and demonstrates that the judgment rendered was the only judgment that could have been properly rendered. The judgment is therefore affirmed.