Automobile Underwriters of America v. Radford ( 1927 )

On Motion for Rehearing.

Appellees, among other grounds urged, contend that this court erred in reversing and remanding this cause because appellant did not file a motion for new trial in the trial court in compliance with subdivisions 29 and 30 of article 2092, R. O. S. 1925, applicable to civil district courts in counties having two or more district courts with civil jursdiction only, whose terms continue for three months or longer.

In passing upon this question, subdivision 28 of said article 2092 should be considered in connection with subdivisions 29 and 30, supra. By the terms of said subdivision 28, all motions and amended motions for new trial are required to be presented within 30 days after date of filing of the original motion or amended motion, and to be determined within not exceeding 45 days after filing original or amended motion, unless postponed to a later date by written agreement of the parties filed in the case. Subdivision 30 makes final judgments of such civil district courts after the expiration of 30 days from the date of judgment or the date of overruling motion for a new trial, and prohibits the setting aside of a judgment rendered by such courts after the expiration of 30 days from the date of the rendition of judgment or from the date motion for a new trial is overruled except by bill of review for sufficient cause. The provisions of said subdivisions were enacted for the purpose of accomplishing the conclusion of litigation in trial courts, therefore are 'mandatory as to the time within which a motion for new trial, whether original or amended, shall be presented to the court for action thereon, and as to the time when such motion shall be determined. Subdivision 29 provides that:

“A motion for new trial where required shall be filed within ten days after the judgment is rendered * * * and may be amended by leave of the court at any time before it is acted on within twenty days after it is filed.”

Article 2232, Id., relating to the filing of motions for new trials in district courts other than courts designated in article 2092, supra, is as emphatic in reference to the time within which the motion shall be filed as subdivision 29, supra. Said article 2232 provides that such motion shall be made within two days after the rendition of verdict, whereas the language of subdivision 29 provides that a motion for new trial, where required, shall be filed within 10 days after the judgment is rendered or other order complained of is entered, and may be amended within 20 days after it is filed. Article 2232 has been construed to be directory only. First Nat. Bank of Ft. Worth v. Henwood (Tex. Civ. App.) 183 S. W. 5; Head v. Altman (Tex. Civ. App.) 159 S. W. 135; Dumas v. Easley (Tex. Civ. App.) 219 S. W. 866; Texas Employer’s Ins. Ass’n v. Moreno (Tex. Civ. App.) 260 S. W. 283; Dittman v. Model Baking Co. (Tex. Com. App.) 271 S. W. 75. We are therefore of the opinion, and so hold, that the provisions of subdivision 29, supra, as to the time in which original motion for new trial is required to be filed and may be amended, is directory and not mandatory, in that it is within the trial court’s discretion to grant a motion filed after the expiration of the period of 10 days specified therein for the filing of motion for a new trial, or to grant an amended motion filed after the expiration of 20 days after the date original motion was filed.

In reference to the proceedings had before the court below, the dates of which are necessary to be determined in order to pass upon another view presented by said ground, equally determinative of same, the record discloses the following: That the trial began June 15, 1925; judgment was entered as of date the 17th day of June, 1925; the jury retired to consider and returned their verdict into court on June 19, 1925; on June 20, 1925, appellee’s motion for judgment was filed. No reference to this motion was eon-tained-in the judgment. The transcript does not contain any reference to the filing by appellant of motion for new trial other than a statement contained in its first amended original motion, to wit:

“Comes now the defendant 'herein filing this its first amended original motion for a new trial herein — ”

which was filed and overruled August 1, Í925. The order overruling same shows that said motion was duly filed by leave of the court and duly heard and . acted upon.

In this state of the record, it is impossible to ascertain the exact date on which the pronouncement was made by the ¿hurt which constituted its judgment. The date of the judgment is the date on which the pronouncement was made by the court which determined the rights of the parties. Regardless of the date of any of the proceedings had prior to the rendition-of judgment, the' judgment can have no other date than that upon which it was in fact declared by the court. The clerical act of entering the judgment as pronounced by the court *in the minutes during the term of the court at which rendered, as required by law, had nothing to do with fixing the date of the judgment. We are to assume from the condition of the record that an original motion for a new trial was filed within the period of time authorized by law, viz., within 10 days from the date the judgment was in fact pronounced, and that the amended motion was filed and acted upon within the time required. This, perforce, of the judgment entered on the amended motion, which is certain as to its date and without conflict in its provisions showing that same was duly filed by leave of the court, and was heard and acted upon, for, unless it should affirmatively appear that such recitals are incorrect, we must assume that all proceedings were in conformity with the requirements of the law as to the filing of the original and amended motions, and that said original motion was heard and determined within the time required by law. We feel constrained to call attention to and condemn the erroneous habit of some courts of entering a judgment “as of date,” followed by numerals indicating some date often quite at variance with the record, as in this case showing that the date given could not be the date of the judgment, viz., the very day on which the court trying the case made the pronouncement that concluded the litigation.

In original opinion we did not discuss the action of the court in overruling appellant’s objection to certain testimony on the ground that appellant had introduced testimony of similar character and thereby waived the effect of the objection made. By this omission we did not intend to hold, and did not hold, in passing upon other objections to evidence, that the court erred in his ruling in reference to the admission of evidence where such objection had been waived by appellant by the introduction of similar testimony. We only pointed out in our discussion the rule applicable to the introduction of testimony for the purpose of establishing market value by a witness, who did not see the property immediately after the fire causing the alleged damage and who testified in reference to such value as of the date on which he examined the property, evidence having been introduced showing the automobile was at that time in the same condition it was in immediately after the fire.

No reason being shown why we should not adhere to our former disposition of the case, appellee’s motion for a rehearing is overruled.