Corder v. Corder , 1945 Tex. App. LEXIS 758 ( 1945 )

This is an appeal from the judgment of the District Court of Terrell County.

Appellant, as plaintiff, brought suit against Ethel Corder and her four minor children, as the widow and heirs of a deceased son of plaintiff, to establish and enforce an oral trust in the oil, gas and mineral rights in and under 8,708.3 acres of land in Pecos and Terrell Counties, Texas, which lands are described in his petition. The minor defendants, through a guardian ad litem appointed by the court, answered with a general denial. The trial was to the court and judgment for the defendants, from which the plaintiff has appealed. Pending the appeal, the guardian ad litem for the minor defendants died and the trial court appointed another guardian ad litem. This court set aside the first submission of the cause and the succeeding guardian ad litem has filed a brief herein. This court has ratified and approved the appointment of the succeeding guardian ad litem by the trial court.

Three points of error are urged by the plaintiff. These are: That the court erred in denying him a non-suit; that the undisputed evidence establishes a trust and the court should have entered judgment accordingly; that the finding and judgment of the court is contrary to and against the overwhelming weight of the evidence.

If the court erred in denying plaintiff's application for a non-suit, the other grounds of error are immaterial. Hence that point will be first discussed.

The only witness relied upon to establish a trust was plaintiff's wife. The record discloses that after the close of the testimony, an argument ensued over the admissibility of the wife's testimony. At the conclusion of the argument, the court overruled the objection and admitted all her testimony, but stated:

"Frankly, I am not at all satisfied with the testimony in the case and I am going to enter * * *."

At that point, appellant's counsel interrupted the court and stated appellant would like to withdraw his announcement of "ready" and asked to take a non-suit. After a colloquy between the court and counsel, in which the court stated that it would not permit the non-suit when judgment was being announced, the court then denied said motion for a non-suit and thereupon for the first time announced the judgment as being against plaintiff denying the relief sought and rendering judgment for defendants with recovery of costs. The right to take a non-suit is governed by Rule 164, Texas Rules of Civil Procedure. This rule provides:

"At any time before the jury has retired, the plaintiff may take a non-suit, but he shall not thereby prejudice the right of an adverse party to be heard on his claim for affirmative relief. When the case is tried by the judge, such non-suit may be taken at any time before the decision is announced."

This rule was taken unchanged from R. C. S. Art. 2182. The decisions as to Article 2182, of course, govern the interpretation of the rule.

The question here is: Did appellant move for a non-suit before the decision was announced? In our opinion, the words used in the rule "before the decision is announced" mean before the judgment is rendered. Rendition of a judgment is its announcement in open court. Here the inference is warranted that the trial court had commenced the announcement of the judgment. Before the announcement was completed, appellant moved for a non-suit.

Rendering a judgment is the announcement thereof. A judgment is not rendered until it has been completely announced. Kidd v. McCracken,105 Tex. 383, 150 S.W. 885; Texas Electric Ry. Co. v. Cox, Tex.Com.App., 49 S.W.2d 725, 89 A.L.R. 11; Adams v. St. Louis Southwestern Ry. Co., Tex. Civ. App. 137 S.W. 437, 438; Humphrey v. Humphrey, Tex. Civ. App.263 S.W. 957; Odum v. Peeler, Tex. Civ. App. 278 S.W. 884, 885; McAlister v. Harvey, Tex. Civ. App. 286 S.W. 548; Houston T. R. C. Co. v. McDade, Tex. Civ. App. 295 S.W. 318; Osterritter et ux v. Board, Tex. Civ. App.91 S.W.2d 750.

It may be that if the rule were that the motion must be presented before the court commences to announce its decision, that the non-suit might be taken, it would tend to bring about a more orderly procedure. This, however, is not an admissible construction of the rule in our opinion under the authorities above cited. It is a right conferred by the rule to take a non-suit in accordance therewith. The decisions of this state indicate that the rule should be liberally construed to effectuate that right. Weil v. Abeel, Tex. Civ. App. 206 S.W. 736.

Here the court seems to have ruled as to the admissibility of plaintiff's wife's testimony and in the same breath started to announce the judgment of the court on the entire case. Counsel for plaintiff may have been under the impression that the time for the announcement of the decision had not arrived. If plaintiff had so requested the trial court would have probably awarded the privilege of argument on the facts.

It is ordered that the judgment of the court in favor of defendant be reversed and remanded to the trial court with instructions to enter a judgment sustaining appellant's motion for a non-suit without prejudice.