Frick-Reid Supply Co. v. Jones , 1926 Tex. App. LEXIS 724 ( 1926 )

BUCK, J.

This is an appeal by plaintiff below, denying it judgment against appellee, J. E. Jones, in a suit upon a series of notes, alleged to have been executed by and for the benefit of a partnership of which Jones was a member.

Appellee has filed a motion to dismiss the appeal, for want of jurisdiction in this court to entertain the same. The record discloses that the cause was tried at the March term of the Seventy-Eighth district court of Wichita county, and judgment rendered April 25, 1924, and an amended motion for new trial was filed April 30, 1924. The March term of the court adjourned May 3, 1924. The motion for new trial was not acted upon at the time of adjournment. The next term of the Seventy-Eighth district court in Wichita county, under the law, convened on the first Monday of September, 1924, or September 1. On September 24th, the court entered the following order:

“Now on the 30th day of April, 1924, it appearing to the court that the plaintiff has filed motion for new trial herein, and that this term is not of sufficient duration in which the court can properly consider and dispose of said motion for new trial. It is therefore ordered: That the term of this court shall be, and the same is hereby, continued as to this case until such time that the court can dispose of the plaintiff’s motion for new trial herein, and it is so ordered. E. W. Napier,

“Judge, 78th District Court.

“9/24/24.

“It is the order of this court that the foregoing order extending the term of court be entered nunc pro tunc as of April 30, 1924.

“E. W. Napier, Judge.”

The motion for new trial was attempted to be overruled on September 24th.

It is urged that, in entertaining the motion for new trial on September 24, 1924, and in entering the nunc pro tunc order as 6f April 30th, the trial court acted without authority; and that all of the acts of the court with reference to said motion for new trial are null and void, and that the judgment rendered on April 25th is final. The record discloses that the same judge who tried the case entered the nunc pro tunc order and overruled the motion for new trial. Article 2232, Vernon’s Annotated Civil Statutes 1925 (article 2025, Rev. St. 1911; article 2025, Complete Tex. St. 1920; article 2232, Codification 1925), provides that a motion for new trial must be determined at the term of court to which it is made. The rule that a trial court, after the expiration of the term at which a judgment is rendered, is without jurisdiction to hear and determine an ordinary motion for new trial, is well established by the authorities. Home Ben. Association v. Boswell (Tex. Civ. App.) 268 S. W. 979; rule 71, for district and county courts, Harris Rules; McKean v. Ziller, 9 Tex. 58. For other authorities, see citation of authorities under article 2232, p. 167, vol. 7, Vernon’s Annotated Texas Civil Statutes 1925. Nor do we think that the rule above mentioned can be avoided by a nunc pro tunc order made at the succeeding term. To authorize entry of an order or judgment nunc pro tunc at a succeeding term, some entry or showing must have been made at the previous term that the 'judgment or order was made at such prior term. Miller v. Richardson, 38 Tex. 500, 503. Nor do we think a nunc pro tunc order can be given the effect of overturning a statute.

Therefore we conclude that the motion to dismiss the appeal should be sustained, and the appeal is dismissed.