Gill v. Rodgers

37 Tex. 628 | Tex. | 1873

Ogden, J.

On the 19th day of October, 1811, a judgment was rendered in this cause for the appellee, and, on the 9th day of November following, appellant filed a motion for a new trial, for the use and benefit of parties therein named, but who were not parties to the suit or judgment. The court overruled the motion, and from which judgment this appeal is taken.

The statute provides that “ all motions for new trials in arrest “ of judgment, or to set aside a judgment, shall he made with- “ in two days after the rendition of the verdict.” The terms of the law are mandatory and must be obeyed by courts as well as by parties. We know of no exception to this requirement of the statute, which will allow parties litigant to come in after the expiration of the time limited by law, with a simple motion for a new trial. When a party has failed to make the motion within the prescribed time, from any cause not under his control, he has a clearly defined and specified remedy, by bill in equity. (Goss v. McClaren, 17 Texas, 120, and Cook v. De la Garza.) But this is quite different from a simple motion.

It may be presumed that the object and purpose of the Legislature in limiting the time within which motions for new trials might be filed, was to furnish parties attending to their causes in court, a guarantee that, after that time, no motion would be heard, and their presence at court would no longer be necessary.

Until the two days expire after the verdict, both parties may be considered as in court, and are bound to notice any action made by the defeated party for a new trial. But, after that time, the case is no longer in court, and parties interested have a right to think the matter settled. And, under repeated decisions of this court, all final judgments, after the expiration of the time limited, cannot be disturbed excepting by an appeal or an original proceeding in equity.

We do not understand the decision in Wells v. Melville, 25 Texas, 338, as announcing any other doctrine, and certainly none other was intended in Hough et al. v. Hammond. In that case a new trial was sought in an original proceeding by petition and citation, and this we held to be the correct practice. In the case at bar, twenty-one days had elapsed after the rendition of judgment before the filing of the motion for a new trial. And the object of the motion, as set out in the affidavits accompanying the motion, was for the benefit of a third party, who, through his great confidence in others, had neglected to attend to his own affairs. He may have rights which were disregarded in the judgment, and if so, he still has a proper and specific remedy; but we think that remedy was not by motion for a new trial after the expiration of the time limited by law.

There is no error in the judgment of the District Court, and it is affirmed.

Affirmed.