293 S.W. 167 | Tex. Comm'n App. | 1927
Tarrant county has more than one district court with civil jurisdiction only, and whose terms continue for three months. One of these, the Seventeenth district court, has four terms, beginning on the first Monday in January, April, July, and October, of each year.
On September 24, 1924, plaintiffs in error recovered judgment in the Seventeenth judicial district court against defendants in error, canceling a drilling contract and for the sum of $15,000. Defendants in error filed motion for new trial on October 3, 1924, and their amended motion for new trial on October -24, 1924.
On October 4, 1924, the court entered an order passing the motion for new trial to its January term for consideration. On March 17, 1925, defendants in error filed their application for writ of error to the Court of Civil Appeals, and on the same day filed their writ of error bond. The motion for new trial was still pending at the time the .application for writ of error and writ of error bond were filed.
The plaintiffs in error filed a motion to dismiss the appeal, for the reason that, at the time the writ of error was sued out, the judgment of the district court was not a final judgment under article 2249, Revised Civil Statutes 1925, in that the district court
Two methods of conferring jurisdiction upon the Courts of Civil Appeals to review the action of district courts in rendering final judgments are provided by our statutes. One is by appeal, and the other by writ of error. Article 2078, Revised Civil Statutes 1911 (article 2249, Revised Civil Statutes 1925), provides that:
“An appeal or writ of error may be taken * *\ * from every final judgment of the district court in civil cases.”
To this provision there are no exceptions. A final judgment in contemplation of this article is an award of “the judicial consequences which the' law attaches to the facts.” Ware v. Jones (Tex. Com. App.) 250 S. W. 663. The judgment here involved is such an award and is a final judgment which had not been set aside or vacated at the time writ of error was perfected. The provision allowing an appeal or writ of error to be taken from .every final judgment included the judgment from which this appeal was taken. The proposition that no judgment is final while a motion for new trial is pending in the trial court has no application to the term “final judgment,” as same is used in this-article, but only has reference to a judgment which may become final in the sense that the trial court has no further power or jurisdiction over it.
A writ of error has the effect to' deprive the trial court of jurisdiction pending appeal. The defendants in error, by perfecting appeal by writ of error, abandoned their motion for new trial in the trial court. While they would have had the right to appeal by giving notice and filing appeal bond, should their motion for new trial have been ■overruled, this did not prevent them from abandoning their motion and perfecting appeal by writ of error, and, as the legal rights of plaintiffs in error could not be adversely affected by the abandonment of the motion, they are in no position to complain.
Here defendants in error have sought by writ of error to confer jurisdiction upon the appellate court to review the action of the district court in rendering judgment against them. They have complied with all the requirements of the statutes in suing, out their writ of error, and, as a legal result of such compliance, jurisdiction was conferred upon the Court of Civil Appeals. None of the provisions of chapter 105, Acts of the Thirty-Eighth Legislature (article 2092, Revised Civil Statutes 1925), “relating to procedure in .civil district courts in counties having two or more district courts with civil jurisdiction only and whose terms continue three months or longer,” have' any reference to, nor control over, an appeal by writ of error to the Court of Civil Appeals. While this act does prescribe the time within which an appeal bond may be filed, it does not purport to change or in any way modify the method of perfecting appeal by writ of error.
The order of the Court of Civil Appeals overruling the motion to dismiss appeal was correct, and, as we approve the judgment reversing the judgment, of the district court and remanding the cause, we recommend that same be affirmed.