Gann v. Hopkins , 1938 Tex. App. LEXIS 97 ( 1938 )

SMITH, Chief Justice.

On March 22, 1938, judgment by default was rendered against some of the defendants in cause No. 1S049-A, M. C. Gann et ux. v. Mrs. P. W. Putman et al., being an action in trespass to try title pending in the District Court of the 28th Judicial District in and for Nueces County.

Thereafter, on April 18, 1938, and at the -same term of court, said defendants filed their motion to set aside said judgment and for new trial, and, still at the same term, on May 7, 1938, after a hearing, the trial judge granted said motion, set aside said judgment as to all parties, and ordered a new trial.

The plaintiffs below have presented to this Court their motion for leave to file petition for mandamus to require Honorable W. B. Hopkins, Judge of said Court, to vacate and set aside said order of May 7, 1938, in whole, or, in the alternative, in part, and to proceed to again render judgment by default against said defendants, as before.

It is true, as a matter of course, that the trial judge retained control over said judgment throughout the term at which it was rendered, and had the power, in his discretion, to set aside said judgment, upon his own motion or that of any party, and with, or without, express cause. That being the rule, and the judgment in question having been set aside and new trial granted, ^at the same term at which it was rendered, this Court has no power, nor has it the-inclination, to require the trial judge to rescind his order granting a new trial, and now again render the judgment he had previously set aside.

The court having set aside the previous judgment, it is presumed the court will proceed to a new trial in due course, .and unless he is requested thereto, and refuses to proceed to trial in a seasonable time, mandamus does not lie to require him to act.

Relators’ motion for leave to file is denied.