44 S.W.2d 787 | Tex. App. | 1931
Lead Opinion
(after stating the case as above).
By express provision of the special practice act, subdivision. 29 of article 2092 (Rev. St.), having direct relation to this case, ■an original motion for new trial, being timely filed, and before it is acted on, “may be amended by leave of the court” if done at any time “within twenty days after it is filed.” As the leave to amend in this case, which was authorized in the order of the court on December 15, 1930, was timely made, being nineteen days after the filing of the original motion for new' trial, the court had, as subdivision 28, as amended by Acts 41st Leg. (1930), 5th Called Sess., c. 70, § 1 (Vernon’s Ann. Civ. St. art. 2092, subd. 28), provides, “forty-five days after” the “amended motion is filed” within which to finally act upon it. The 45-day period dates, as decided, from the filing of the amended motion, and not from the original motion for new trial. Diamond Ice & Cold Storage Co. v. Strube, 115 Tex. 515, 284 S. W. 935. But the granting of the leave to amend was not intended and could not operate to dispense with the necessity of filing the amended motion at the time required, which will be implied to be at the time the authorized leave of the court was granted; there being no statutory provision otherwise providing. As can be seen, in the proceedings the amended motion for new trial was not filed until January 23, 1931, being 58 days ■after the motion for new trial was filed, and
It is necessary that errors occurring during the progress of the trial shall be made the basis of a motion for new trial as a prerequisite to the consideration of such errors on appeal. See 3 C. J. §§ 849-850, citing rule in Texas. When not conferred upon it or forbidden to do so by statute, a court is without authority to extend the statutory time, either for the purpose of moving for a new trial or for the purpose of amending a motion for new trial. 46 C. J. § 291; McIntosh v. Zaring, 150 Ind. 301, 49 N. E. 164; Riggs’ Estate v. Wayne Circuit Judge, 229 Mich. 470, 201 N. W. 498; Security State Bank v. Rodway, 50 S. D. 156, 208 N. W. 778.
The effect of the failure of the trial court to finally determine the amended motion within the 45-day period was to overrule it by operation of law. The motion is granted and the appeal is dismissed for want of jurisdiction in this court to entertain the same; the appeal bond not being timely filed as required by statute.
Rehearing
On Rehearing.
It is urged that the order made upon the application of the appellant extending the time within which to file the amended motion for new trial and to make presentment thereof for action by the court was allowable under the statute. By express terms of article 2092, subdivision 28, as amended by Acts 41st Leg. (1930), 5th Called Sess., c. 70, an original motion for new trial timely filed, and which was “not acted on at the term of court, at which it was filed,” shall not be considered as waived or overruled, but may be disposed of at a time; namely, (1) At the succeeding term of the court, or (2) at any time which the judge may fix, or (3) at any time fixed by the agreement of the parties with leave of the court. It was clearly intended by such provision to save something which would otherwise be lost, and therefore the general provision mentioned should be regarded as having the same effect as a saving clause in a repealing statute. Such general provision, .however, in view of following parts of the same section, was not intended to be unlimited in time of performance. By the subsequent clause it was expressly declared that the motion and amended motions for new trial (1) “must be presented within 30 days after the original motion or amended motion is filed”; (2) “and must be determined within not exceeding 45 days after the original or amended motion is filed.” The only departure allowable by the act from the time provisions stated is that of “unless by written agreement of the parties filed in the case the decision of the motion is postponed to a later date.” That particular designation of time for doing of acts required to be performed was manifestly intended to control the acts to be done and to operate as a limitation upon the time required for the doing of the certain
The motion for rebearing is overruled.