114 S.W.2d 934 | Tex. App. | 1938
Relator seeks to mandamus Hon. Ewing Boyd, judge of one of the district courts of Harris county, to set aside an order entered by him granting respondent Turk a new trial, and to give full force and effect to the judgment previously rendered in favor of relator against respondent Turk. The procedure and practice in the district courts of Harris county are governed by article 2092, R.S. 1925, as amended.
The jury returned a verdict on special issues on October 24, 1937. Relator filed its motion for judgment on such verdict on October 30, 1937; and on the same day respondent Turk filed what he denominated "Plaintiff's Opposition, Objections, and Exceptions to Motion of Defendant for Judgment and Motion to Declare a Mistrial," the nature and character of which will hereafter be discussed. On November 8, after a hearing thereon, the court rendered judgment granting "the motion of defendant (relator), Houston Lighting Power Company, to render and enter judgment in accordance with the form attached to its motion, and overrules the motion of plaintiff (respondent), M. Turk, to vacate and set aside the verdict of the jury and declare a mistrial, to which action of the Court in granting defendant's motion * * * and overruling his motion to declare a mistrial, plaintiff then and there, in open court, duly excepted." Later, on November 16, 1937, Turk filed a motion which he denominated, "Original Motion for New Trial"; and on November 29, 1937, he filed his "Amended Motion for New Trial." The court heard this last-mentioned motion on December 20, 1937, and made the following ruling thereon: That "plaintiff's said amended motion for a new trial herein, be and the same is hereby in all things granted and the verdict of the jury and the judgment of the Court heretofore rendered in said cause on the 8th day of November, 1937 * * * be and the same is hereby set aside and held for naught and this cause reinstated on the docket of this court and a new trial granted and ordered." *935
It is relator's contention that Turk's pleading, the so-called "Plaintiff's Opposition, Objections and Exceptions to Motion for Judgment and to Declare a Mistrial," is in substance and effect a motion for a new trial; that consequently the filing of it on October 30, 1937, was the filing of a motion for a new trial under subdivision 28, article 2092, so as to fix the time thereafter in which to conclude the term of court as to such case under the provisions of subdivision 30 of said article, reading: "30. Judgment final, when. — Judgments of such civil district courts shall become as final after the expiration of 30 days after the date of judgment or after a motion for a new trial is over-ruled as if the term of court had expired. After the expiration of thirty days from the date the judgment is rendered or motion for new trial is overruled, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law for the filing of bills of review in other district courts."
The motion filed by Turk on October 30, 1937, which relator contends is essentially a motion for a new trial, is too long to reproduce here. It opens in this style: "Comes now M. Turk * * * and excepts and objects to the rendition of and entry in said cause of any judgment in favor of the defendant, * * * and particularly the judgment presented in connection with said defendant's motion filed on the 30th day of October, A.D. 1937; and further, respectfully moves the Court to quash, strike out and expunge from the record, annul or to set aside the verdict of the jury returned into Court, received and filed on Tuesday, October 26, 1937, and declare a mistrial, for the following good and sufficient reasons, viz." Among the grounds specified therein, it was urged that the verdict was wholly without support in the evidence, and was against the great preponderance of the evidence, and that the argument of counsel was improper. The conclusion was in this language: "Wherefore, plaintiff respectfully prays the Court that the motion of the defendant for judgment be in all things denied, and that the verdict of the jury be stricken and expunged from the record in this cause, or set aside and held for naught and that the Court declare a mistrial. Plaintiff prays for all such other and further relief as may be by the Court deemed mete, just and proper, and in duty bound", etc. It is undoubtedly true that much of the contents of the pleading which we have omitted copying is such as would have enabled it to do the service of a motion for a new trial. It is also competent to file a motion for a new trial, where the case is submitted on special issues, before judgment is rendered. Missouri-Kansas-Texas Ry. Co. v. Brewster,
It is quite true that courts will pierce through form to get to the substance of a matter in order to promote, or prevent a miscarriage of, justice. But, if it should be conceded that Turk's motion of October 30 is in form one for a mistrial, but in substance one for a new trial, would justice for Turk be promoted, or injustice to relator prevented, by holding it a motion for a new trial? If it were held to be a motion for a new trial, it is undoubtedly true that the order made by the court granting a new trial on December 20 would have been a nullity, because such action would have taken place after the term of court, as to such case, had concluded, and the court's jurisdiction thereon would have ended. Dallas Storage Warehouse Co. v. Taylor,
Respondent Turk insists we are without jurisdiction to entertain this application for mandamus, and relies on Wichita Falls Traction Co. v. Cook, Judge, Tex. Civ. App.
"This court has the jurisdiction to issue a writ of mandamus to compel a district judge to proceed to judgment in a cause. [Citing authorities.] It is equally certain that Courts of Civil Appeals have the power to issue such writs." (Citing authorities.) The opinion then goes on to lay down the rule of practice which requires litigants to apply for writs of mandamus to Courts of Civil Appeals, before recourse is had to the Supreme Court. See, also, Driscoll v. Casstevens, Tex. Civ. App.
Motion to dismiss refused; mandamus refused.
PLEASANTS, C. J., absent.