Fenn v. Gulf, Colorado & Santa Fe Railway Co.

GAINES, Associate Justice.

This suit was brought by the appellants against appellee in the District Court of Fort Bend County, and at the Spring Term, 1889, was tried by the court without a jury and resulted in a judgment for appellants. Appellee filed a motion for a new trial at the same term, and upon hearing the motion the court entered the following judgment:

"And now, on this 17th day of April, A. D. 1889, came on to be heard the defendant’s motion for a new trial. Both parties appeared by their attorneys, and upon argument had and the law in the case, the court is of the opinion that a new trial should be granted. It is therefore ordered, adjudged, and decreed by the court that defendant’s motion for a new trial be and the same is hereby granted and judgment vacated. It is further ordered by the court, adjudged, and decreed that defendant pay all costs of witnesses in attendance at this term who testified in this cause already had, as a condition upon which the venire facias de novo is awarded.”

At the next term the plaintiffs moved the court to strike the cause from the docket and to award them an execution on the judgment rendered in their favor at the former term. The court overruled the motion, and plaintiffs declining to prosecute the cause further, dismissed the suit for the want of prosecution. From the judgment overruling the motion and dismissing the cause this appeal is taken.

That an order granting a motion for a new trial must be absolute is well settled., Secrest v. Best, 6 Texas, 199; Gorman v. McFarland, 13 Texas, 237. If, therefore, the order in question in this case was conditional—that is to say, was to take effect and become final upon the contingency of the defendant’s paying the costs adjudged against it—it was a nullity, and the court should have granted the motion made at the next term to strike the case from the docket. But we do not so construe it. If the word “condition” had no other meaning except that in which it is used in the law of conveyancing, we might be constrained to hold that the order granting the new trial was to take effect only upon the contingency that the defendant should pay the costs. But such is not ■the fact. Among other definitions, Worcester gives its meaning as “ something to be done,” and in that sense when plural is synonymous with “terms.” Worcester’s Die. It is evidently employed in this sense in the statute which provides that new trials may be granted.

Article 1368 of the Revised Statutes reads as follows: “ Hew trials may be granted and judgments may be set aside or arrested on motion, for good cause, on such terms and conditions as the court shall direct.” The statute in force when Secrest v. Best, supra, was decided contained the same language, and that decision holds, in effect, that the use of the word “conditions” did not warrant the granting of a new trial which was to.take effect or be defeated by the happening of a future event. This is sufficient to show that the word “condition” in the order under consideration was not used in its technical sense. It should rather be inferred that the court used the word in its statutory meaning, since it was exercising the authority conferred by the statute, and may be presumed to have had the statute before it.

In the order we are considering it is announced that the court is of the opinion that the new trial should be granted. This is unconditional. The judgment is “that defendant’s motion for a new trial be and the same is hereby granted and judgment vacated.” This is absolute. And we think the subsequent entry meant no more than if it had read, “as the terms upon which the trial is granted, it is adjudged that the defendant pay the •costs of the witnesses in attendance at this term.” The word “terms,” as signifying propositions or stipulations, or the conditions upon which .an order of court is granted, is not used in the singular, and the fact that there was but one thing which was required to be done by the order suggests the reason why the word “condition” was used. We are clearly of opinion that it was not intended to make the grant of the new trial conditional, and that the court did not err in so holding.

The judgment is affirmed.

Affirmed.

Delivered March 4, 1890.