47 S.W.2d 659 | Tex. App. | 1932
(after stating the ease as above).
The plaintiff in error presents the points in view that (1) the cause, being filed on February 7th, was returnable to the regular statutory term of the court in June, 1931, and neither he nor his attorneys had notice of the calling of the special term of court, and (2) his application shows good cause for vacating the dismissal order and reinstatement of the cause. The motions of April 25th and April 27th must fail of force and effect as motions for vacation of the dismissal order and reinstatement of the cause, because, being filed after the adjournment of the special term at which the dismissal order was made in the cause, they came too late for the trial court to legally act upon them. Article 2232 R. S.; Eddleman v. McGlathery, 74 Tex. 280, 11 S. W. 1100; Green v. Green (Tex. Com. App.) 288 S. W. 406. Therefore the dismissal order made in the cause, being not vacated and not. subject to be vacated merely upon motion of the parties, may be considered a final judgment for purposes of appeal. Green v. Green (Tex. Com. App.) 288 S. W. 408.
The statute expressly provides that the citation shall summon the defendant “to appear and answer the plaintiff’s petition at the next regular term of the court.” Article 2022, R. S. A citation so issued and served, and where the defendant has not appeared and answered the petition of plaintiff, no default could be legally taken against defendant, and the cause would not be subject to trial as against the defendant, at a term of court other than the existing “next regular term of the court.” Neill v. Brown, 11 Tex. 17; Meckel v. Bank (Tex. Civ. App.) 256 S. W. 668. But the present suit may not be considered as standing merely in that special situation. The defendant here duly, filed his an-
As respects the second point, the appellate court has not authority to determine in the first instance whether or not in point of fact “good cause” for reinstatement of the ease existed. Whether or not the alleged grounds constitute “good cause” in point of fact must be determined in the first instance by the trial court. This court is not authorized to pass upon facts in the first instance, except where the jurisdiction of this court is involved. Rule 71a expressly provides that a motion for new trial shall be filed in all cases appealed or where writ of error is sued out in order to have reviewed on appeal questions of fact. The alleged grounds seemingly appear meritorious, but this motion was filed too late for the trial court to consider same.
The judgment is accordingly affirmed without prejudice to a new suit or legally authorized proceedings.