
    McKean v. Ziller.
    A motion for a new trial must he determined during the term at which it is made, or it will be di--on;,i-gi'd by operation of law. (Noto li.)
    After 1 Ik; sdioiinimeut, of the term a judgment can bo sot aside or vacated only by an original prove.‘ding instituted for that purpose, setting forth equitable grounds sufficient to entitle the party to a rehearing. (Note 12.)
    Appeal from Travis. Tlie appellee recovered a judgment against the appellant., which was regularly entered at tlie Spring Term, ÍS51. At the same term the defendant moved for a new trial, which motion the court took under advisement-, mid continued the case until tlie next term, and at the same time declared .ail further proceedings on the judgment stayed until the motion for a new trial ■should be decided. ‘ At the next term the court acted on the motion and granted a new trial. At the next term thereafter, (Fall Term, 1852,) the plaintiff moved the court to dismiss the case from tlie docket, and award execution on tlie judgment theretofore rendered. Tlie court overruled the motion, and the plaintiff declining to proceed further, tlie ease was dismissed for the want of prosecution. The plaintiff brought a writ of error to reverse the judgment rendered on the motion to dismiss the case from the docket, and award execution of tlie judgment previously rendered.
    
      Oldham §■ Marshall, for appellant.
    
      Lee and. A. W. Sneed, for appellee.
    
      Note 11. — where there is no entry disposing of the motion for a now trial the presumption is that the motion was abandoned, (Laird v. The State, 15 T., 317,) and it is discharged by tho adjournment of the court. (Id.; Bass v. Hays, 38 T., las.)
    Note 12. — Bradshaw v. Davis, 12 T., 336. To entitlo a party to invoke the equitable, pav.ers of tho eourt to grant him a new trial ordinarily he must not only show a suilicient excii..e ('■ u not having pursued his ordinary legal remedy,"but ho must bring liis ease within those equitable rules and principles which govern tho granting of new trials. (Spencer />. Kinnard, 1:1 T„ JxO; Miller v. Hall, 12 T., 556; Cook v. De La Garza, 13T.,4:11; (loss v. ivIeWaren, 17 T-. 107; (hp-non v. Wans low, IS T ,125; Fisk v. Miller, 20 T., 572; Burnley r. Riee, Adams & Co., 21 T„ 171; Vnrde-nian v. Edwards, 21 T., 737; Gregg v. Bankhead, 22 T., 215; Plummer v. Power, 2» T.. 6: Hatch-ett v. Connor, 30 T„ 101.) In Ward v. Cobbs, 14 T., 3B3, it is hold that tho motion ¡ houM be .-up-ported by an affidavit giving the names of the witnesses, anil their affidavits of the nets that could be proved by them; or if, from the distance of their residence, or any other e-in.-o. tho affidavits could not have been procured, it ought to have been shown by tlio affidavit of the defendants. (Burnley u Rice, Adams & Co., 21 T., 171.) If, without notice to a landlord, judgment in trespass to try title bo recovered against his tenant, it is competent for the landlord, even after the term, upon sufficient allegation, supported by affidavits, to liavo the j-udement against his tenant set aside and himself admitted to defend the suit upon a now trial" (Hough v. Hammond, 36 T., 657.) The granting of anew trial is as properly a matter for revision as ihe granting of any other equitable relief. (Goss v. Moderen, 17 T., 107.) But such judgment is interlocutory and will not be revised on error or appeal until after filial judgment, nor in such case will a writ of error lie to the first judgment after it has been thus set aside, (títowart v. Jones, post 400.)
   Wheeler, J.

The statute (Hart. Dig., art. 7CG) provides that “All wo-“tioiis for new trials in arrest of judgment or to sot asidea judgment shall be “determined at the term of tho court at which such motion shall ho made.”

It is insisted that the statute is but directory and that it was within the power of the court to postpone to the next term and then act upon the motion for a now trial. We cannot so regard it. We think the mandate of (lie law is peremptory and must be obeyed, and that at tlio end of tlio term the motion not having tjpcn acted on ivas discharged by .opera! ion of law.

The suspending of the judgment was consequent upon the continuance of the motion. The one was but incidental to and was dependent upon the oilier. But the judge not having the legal authority to continue the motion, tlio order for that purpose and that made dependent upon it were alike void.

It is true that the court has control over and for good cause may alter or vacate its judgments during tho term, but in this case the court did not set aside or vacate the judgment during tho term. It could do so afterwards only by an original proceeding instituted for that purpose, sotting forth equitable grounds sufficient to entitle the party to a rehearing. (Goss v. McClaran, 8 Tex. R.)

We are of opinion that the court erred in refusing to set aside the proceedings subsequent to the judgment and award execution ; that tiio judgment be reversed and such judgment be rendered as tho court below ought to have rendered.

Reversed and reformed.  