57 S.W. 565 | Tex. | 1900
The Court of Civil Appeals for the Fourth Supreme Judicial District has certified to this court the following statement and question:
"This suit was brought by appellant in the ordinary form of an action of trespass to try title on June 8, 1899.
"On October 3d, the appellee (defendant below) having failed to appear or answer, though having been duly cited, judgment by default was rendered against him in plaintiff's favor for the land in controversy.
"On October 14th, appellee filed a motion to set aside the judgment, which was granted on the 28th of said month on condition that appellee pay all costs up to that date on or before the last day of that term of the court, and if the costs were not paid by that time, it was ordered that the motion be overruled. *610
"The last day of the term at which the order was rendered was December 2, 1899. Before that time, on November 16, 1899, the costs to that date were paid to the clerk of the court by appellee's attorney.
"On the second day of the next term, which began on the 4th of December, 1899, appellant filed a motion to strike the cause from the docket and for a writ of possession, on the ground that the order granting appellee's motion to set aside the judgment by default is a nullity. On January 20, 1900, the motion was overruled, and on the 29th day of the same month, the appellant having refused to further prosecute the suit, an order was entered dismissing the cause for want of prosecution. The appellant, having excepted to such order, has appealed therefrom.
"Question. — Did the order made by the District Court on the 28th of October, 1899, setting aside the judgment by default, become effective and operate as a new trial upon payment of the costs by appellee's attorney on November 16, 1899?"
We answer the question in the affirmative. It has been held generally that a court may grant a motion for new trial upon a condition to be performed thereafter, and in case the condition is not performed, the judgment which had been vacated will be restored. 15 Enc. of Pl. and Prac., 290; 1 Black on Judg., sec. 352; 1 Freem. on Judg., sec. 104; Hayne on New Trials, sec. 166, 496; Mabley v. Judge, etc.,
Article 1370 of the Revised Statutes is in the following language: "New trials may be granted and judgments may be set aside or arrested on motion for good cause on such terms and conditions as the court shall direct." This statute expressly authorizes our courts to grant new trials upon conditions, without defining what the conditions may be. It is declaratory of what the common law was before its enactment, and therefore we may look to that law to ascertain what is meant by conditions as used in the statute. Independent of the statute, the court might have granted a new trial in this case upon condition to be thereafter performed; for instance, that the defendant should not plead the statute of limitations to the action, or such other matter as it might deem necessary to attain the ends of justice.
Article 1374, Revised Statutes, provides that "all motions for new trials, in arrest of judgment, or to set aside a judgment, shall be determined at the term of the court at which such motion shall be made." The court can not continue a motion beyond the term at which it is filed. McKean v. Ziller,
In the case of Fenn v. Gulf, Colorado Santa Fe Railway Co.,