McArthur v. Henry

34 Tex. 143 | Tex. | 1871

Ogden, J.

The motion to dismiss this cause from the docket must he sustained. The rule that all motions for a rehear in 2: must be made and acted on by the court during the term at which the judgment w&s rendered, has been so uniformly adhered to that we are of the opinion that it is no longer a matter -of discretion; and we ape disinclined to entertain such a motion, at least until we find a cause presenting stronger equities than the one at bar. The appellant’s answer shows that on the -eighteenth day of October, 1869, the judgment of the court below was affirmed. But there "is no sufficient reason given why the motion for a rehearing was not made and-urged immediately on the affirmance, and before the same court and judges that affirmed the judgment of the lower court; and we can see no good reason why the court that affirmed the judgment might not have granted a rehearing. But, admitting that at the time of filing the motion there was not a quorum , of the court present who were qualified to act on the motion, then the appellant would have a cause addressing itself to the equitable powers of the court, had the motion been promptly urged at the first opportunity when there was a court that could have acted upon it. But an entire session of the court was held here in the spring and summer of 1870, and with a quorum of the court qualified to have acted on the motion, and yet there was no action had, and, so far as is' now known, no action was sought until the present time. This court will, therefore, now presume that the court, or the judges thereof, did consider the motion and refuse to grant a rehearing. The motion is therefore refused' and dismissed.

Motion overruled.