Stevenson v. State

The term of court adjourned by operation of law on December 25, 1937. It appears from statements of the county judge, county attorney and the attorney for appellant that all of said parties were under the impression that the term extended a week longer because the next term of court did not begin until January 3, 1938, there being in fact a vacation period of one week between the ending of one term and the beginning of another. Appellant's amended motion for new trial was filed on December 24th and it was agreed among all the parties named that said motion would be set down for hearing on December 30th; this agreement of postponement being largely for accommodation of the county attorney, who had made arrangements to be away during the Christmas holidays. On December 30th the trial court undertook to act on appellant's motion, overruled the same; appellant gave notice of appeal and entered into recognizance as though court were in session, although in fact same was in vacation.

We appreciate the candor with which the facts are presented, but have not discovered any way to aid in extricating the parties from the dilemma in which they find themselves.

At the time the orders were made the court was in vacation and had no jurisdiction to act in the premises. In Ex parte Juneman, 28 Texas Crim. App. 486, appears the following, taken from the opinion in Doss v. Waggoner, 3 Tex. 515: " 'The court had no jurisdiction to hear and determine causes at the time these judgments purport to have been rendered. There was in fact no court in session, and no judgments could by law have been pronounced, and consequently they are not only absolute nullities in the ordinary signification of the term when applied to judgments of courts having no jurisdiction over the subject matter or the parties, but they are not even the acts of a court, and are, therefore, not susceptible of appeal or the subject of revision in an appellate tribunal. * * *' "

We quote further from Juneman's case (supra): "The term expired at 12 o'clock of Saturday night, March 29, 1890. From that time there was no court; hence no order, ruling, judgment, or sentence would be the act of a court, and could constitute no part of the record on an appeal. The motions in arrest and for new trial, and notice of appeal would be void and could constitute no part of the record. Unless an order had been made in term time for that purpose, a statement of facts could not be approved by the judge. This court would not hesitate to dismiss an appeal in the absence of verdict, judgment, or notice of appeal given in term time."

See, also, Knight v. State, 99 Tex.Crim. Rep.,267 S.W. 983.

The motion to reinstate the appeal is denied.