Aetna Ins. Co. v. Dancer , 1919 Tex. App. LEXIS 1083 ( 1919 )

STRONG, J.

The plaintiff, Dancer, sued the /Etna Insurance Company in the district court of McLennan county on a fire insurance policy. The case was first tried at the April term of the court, 1913, and resulted in a verdict in favor of the defendant. Upon the return of the verdict, the court made the following entry on the docket: “Judgment for the defendant on verdict of jury.” Plaintiff filed a motion for new trial. The April term of court ended without the judgment having been entered on the minutes of the court, and without any ruling having been made upon the motion for new trial. At the July term, 1913, upon motion of defendant, agreed to by plaintiff, the judgment which had been rendered upon the verdict of the jury for the defendant at the April term of court was entered of record nunc pro tunc. Plaintiff immediately filed a second motion for new trial, which was, over the objections of the defendant, heard and granted by the court at the July term. At the January term of the court, 1914, the cause was again tried. The trial resulted in a verdict and judgment in favor of plaintiff, .which was affirmed by the Court of Civil Appeals, 181 S. W. 772.

It is urged by the first assignment in the application for writ of error that the judgment appealed from is void, for the reason that the court was without jurisdiction to render the judgment, in that a final judgment was rendered in said cause at the April term, and the court'was without power to vacate said judgment at a subsequent term and retry the ease.

[1,2] We think the assignment must be sustained. The entry of the judgment at the April term of the court was not necessary in order to make the judgment final. Black on Judgments, §§ 106, 110. The judgment being final at the term at which it was rendered, and having in no way been set aside at that term, the court was without power, on motion for new trial, to set it aside at a subsequent term. Eddleman v. McGlathery, 74 Tex. 280, 11 S. W. 1100. In the cited case the court, speaking through Judge Gaines, said:

“The judgment of dismissal at the former term was a final judgment, and it is a well-settled rule of practice in this state that after the adjournment of the term at which such a judgment is rendered it is no longer subject to the control of the trial court” (citing Rogers v. Watrous, 8 Tex. 62 [58 Am. Dec. 100]; Metzger v. Wendler, 35 Tex. 378).

The court being without power to grant a new trial at a subsequent term of the court to that at which the judgment'was rendered, the order granting the new trial and all subsequent proceedings in the case were absolutely void. Carter v. Commissioners, 75 Tex. 286, 12 S. W. 985; Eddleman v. McGlathery, supra ; McKean v. Ziller, 9 Tex. 58; Bradford v. Malone, 49 Tex. Civ. App. 440, 130 S. W. 1013.

The decision in the case of Palmo v. Slayden, 100 Tex. 13, 92 S. W. 796, is not in conflict with the rule announced in the cases above cited. The question as to the power of the trial court to hear and act upon a motion for new trial at a subsequent term of the court to that at which the judgment was rendered was not before the court in that case. The only question decided was that where a case was tried and verdict rendered, but no judgment entered thereon until a subsequent term of the court, the time allowed by statute for filing the statement of facts would date from the entry of the judgment, and not from its rendition. The plaintiff in the case at bar had the right to perfect an appeal from the judgment rendered at the April term of the court, after, the entry of the judgment nunc pro tunc; but he had no right to file, and the trial court had no jurisdiction to hear and act upon, a motion for new trial at a subsequent term of the court to that at which the judgment was rendered.

[3, 4] Nor do we think the defendant was required to plead the judgment rendered at the April term of the court in bar to further proceedings in the case upon the second trial. Both trials were had in the same tribunal and upon the same cause of action, and the court was bound to take judicial cognizance of its previous action in the case. Kelly v. Gibbs, 84 Tex. 143, 19 S. W. 380, 563; Jeffries v. Smith, 73 S. W. 48; Simon v. Greer, 34 S. W. 344; Robinson, v. State, 21 Tex. App. 160, 17 S. W. 632.

We are of opinion that the judgment of the Court of Civil Appeals and that of the trial court should he reversed, and judgment here rendered for plaintiff in error.

PHILLIPS, C. J.

The judgment recommended by the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.

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