Ray v. Gage , 1954 Tex. App. LEXIS 2629 ( 1954 )

BOYD, Justice.

David M. Ray prosecuted this suit against H. L. Gage and Walter L. Hasley for damages for personal injuries resulting from a collision between an automobile driven by George W. Ray, in which David M. Ray was a passenger, and a truck driven by Hasley and owned by Gage. Judgment was for the defendants, and plaintiff appeals.

Appellant was riding in the front seat of the automobile, on the right side. He had fallen asleep with his right elbow on the window sill or extending through the window. The car approached the truck, which was traveling in the same direction, and as the driver of the car tried to pass the truck, the collision occurred in which appellant suffered serious injuries to his arm. The jury found the driver’ of the truck guilty of negligence proximately causing the collision, and found contributory negligence on the part of appellant because of his riding in the car with his arm in the position it was in while asleep.

Appellees have moved to dismiss the appeal, their contention being that the appeal bond was filed too late to confer jurisdiction on this court.

The proceedings of the trial were regulated by the Special Practice Act. On the day the judgment was entered, appellant filed a motion for mistrial, alleging jury misconduct. On the day 'set for a hearing on that motion, appellant asked if it might be agreed that he change the motion so as to make it a motion for new trial, and appel-lees consented, it being understood that the motion for new trial should contain no ground other than that contained in the motion for mistrial, and no additional affidavits. The instrument was endorsed “Plaintiff’s Original Motion for New Trial,” and it was agreed that it might bear the same file date as the other motion. Before the hearing on the motion for new trial, appellant indicated that he might desire to file an amended motion for new trial. Appellees protested that appellant was not entitled to present a motion for new trial and then amend and present the amended motion, and opposed any hearing at that time. Then the following colloquy took place:

“Mr. Peery (counsel for appellant): I want my motion, my original motion for new trial heard at this time Judge that’s all that’s been filed. Whether I can do something later on or not, I don’t know, the Court has no control over what I can do later on, maybe I won’t file any amended motion for new trial, I don’t think I will have to, but that’s a matter that the rules say you have got to—

“The Court: It has to be filed with leave of the Court, an amended motion.

“Mr. Peery: Yes. I will probably ask leave of the Court if the Court overrules this, why certainly there is some other errors in here that I didn’t feel it was necessary to raise in this original motion, errors of law and objections and exceptions raised in the evidence, things like that, but my position is that I think I can prove conclusively that this misconduct will set the verdict aside so why draw a motion with 37 assignments in it ?

“The Court: .All right, well, I don’t know about hearing this piecemeal, then if the Court goes against you, filing something else, I would like to hear it all at once, hear the whole thing.

“Mr. Barker (counsel for appellees): That’s the way it ought to be I never heard of hearing two motions for new trial, an original and an amended motion, the rules make no provision for it.

“Mr. Peery: I would like to put on these witnesses Judge, we have been delayed here today and these witnesses want to get back, I want my original motion for new trial heard.

“.The Court: Well you have put the Court on notice that you will probably file an amended motion and I don’t want to do anything to leave the impression that the Court will automatically grant the leave.

“Mr. Peery: Well that’s all right Judge, that’s all right, I know what the Court is thinking about but I don’t want to foreclose my right that in the event the Court should overrule this motion to set up an assignment to the effect that the Court erred in admitting evidence of res gestae which was taken in the hospital and things like that but to prepare that kind of a motion I would have to have the record transcribed, and I can’t .see any reason, if I have got what I think is a cinch grounds for a new trial I would like to present it at this time.

“The Court: Well I would like to get rid of all of those fact questions.

“Mr. Peery: Well that’s all there will be on this, just fact questions, I don’t intend of course on an amended motion for new trial to come in here and put this testimony on again.

“The Court: I don’t want any supplemental or amended motion set up showing misconduct of the jury.

“Mr. Peery: Well I will assure the Court that we aré going to rely on any misconduct here, any motion we file, we will not call in some more jurors and go into some more misconduct — have another hearing on that.

“Mr. Sherrod (counsel for appellees): You will not do that?

“Mr. Peery: No.

“Mr. Barker (counsel for appellees): Well we still take the position that we will oppose any amended motion.”

A hearing was had, during the course of which appellant introduced evidence of jury misconduct, and argument was offered. There is nothing in the record to show that the court overruled the motion, but appellees insist that at the conclusion of the hearing the court said that the motion was overruled. We think we are bound by the record. George v. Senter, Tex.Civ.App., 194 S.W.2d 290; Schweizer v. Adcock, 145 Tex. 64, 194 S.W.2d 549; Home Ins. Co. of New York v. Dacus, Tex.Civ.App., 239 S.W.2d 182.

The hearing was on the twentieth day after the original motion was filed, and on the same day the court entered an order granting appellant leave to file an amended motion for new trial, and an amended motion was that day filed. It was presented on the thirtieth day after its filing to another .Judge sitting for the Judge who tried the case and heard the original motion. The docket has this notation, signed by the Judge to whom the amended motion was presented: .“8-24-53 Plaintiffs’ Amended Motion for New Trial presented to the Court. Defendants excepted to such presentment.” There is nothing in the recordóte show that the amended motion was ever acted on by the court, and, if it had any efficacy at all, it became overruled by operation of law forty-five days after it was filed. The appeal bond was filed forty-seven days after the original motion was filed.

If the date on which the judgment became final is controlled by the date on which the original motion was filed, it became final two days before the appeal bond was filed. If the date on which the judgment became final is controlled by the date on which the amended motion was filed, the appeal bond was filed in time.

Although the case presents an unusual situation, we have concluded that appellant’s right to file and present an amended motion for new trial was not foreclosed by the proceedings which had theretofore transpired. Rule 330(k), Texas Rules of Civil Procedure, provides that a motion for new trial may be amended “by leave of the court at any time before it is acted on within twenty (20) days after it is filed.” Rule 330(j) is in part as follows: “All motions and amended motions' for new trials must be presented within thirty (30) days after the original motion or amended motion is filed and must be determined within not exceeding forty-five (45) days after the original or amended motion is filed, * * *.”

There seems therefore to be a distinction between presenting and acting on a motion for new trial. We agree with appellees that there is no provision in the rules for amending a motion for new trial after the original motion has been acted on by the court; but we have been cited to no authority, and have found none, holding that the presentation of an original motion, even though testimony and argument are offered thereon, prevents the filing of an amended motion by leave of the court within twenty days after the original motion is filed, and before it is overruled. The rules provide for presenting as well as acting on motions for new trial; they do not provide that an amendment must be filed before the original has been presented, but only before it has been acted ón; And we’ are not at liberty to read into the rule something we do not find in it. Moreover, it has been held that a record should be given a liberal construction in favor of the right of appeal, rather than that the right of appeal should be denied by a strained construction of the rules. W. C. Turnbow Petroleum Corporation v. Fulton, 145 Tex. 56, 194 S.W.2d 256; Patrick v. Pierce, 107 Tex. 620, 183 S.W. 441; Blalock v. Slocomb, Tex.Com.App., 245 S.W. 648.

The motion to dismiss the appeal is overruled.

MASSEY, C. J., dissents.