
    HENNINGSMEYER et al. v. FIRST STATE BANK OF CONROE.
    (No. 3982.) 
    
    (Supreme Court of Texas.
    June 20, 1917.)
    1. Appeal and Error <&wkey;345(2) — Writ of Error — -Time for Filins'Petition — Successive Motions eor Rehearing.
    By filing successive motions for rehearing, the time allowed by Rev. St. art. 1541, for filing petition for writ of error cannot be extended, the terms of the statute being imperative, and the time is to be computed from time of filing original motion.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1895, 1896.]
    2. Judgment <&wkey;298 — Motions <&wkey;58 — Court of Civil Appeals — Control over Judgments and Orders.
    Tlie Court of Civil Appeals has full’control over its judgments and orders during its term, and could set aside a former order or make, after its original action in a case, any further orders it might deem proper.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. § 582; Motions, Cent. Dig. § 72.]
    Hawkins, J., dissenting.
    Error to Court of Civil Appeals of Ninth Supreme Judicial District.
    Suit by tbe First State Bank of Conroe against Fred Henningsmeyer and others. Judgment for plaintiff, and defendants Fred Henningsmeyer and Mary Henningsmeyer appealed to tbe Court of Civil Appeals, where judgment was affirmed- 192 S. W. 286. On motion to dismiss petition for writ of error.
    Motion granted.
    Howard Bennette and W. N. Foster, both of Conroe, and G. P. Dougherty, of Houston, for plaintiffs in error. A. L. Kayser, of Con-roe, for defendant in error.
    
      
      Writ of error dismissed by Supreme Court.
    
   PHILLIPS, C. J.

The judgment of the Court of Civil Appeals was adverse to the plaintiffs in error. Their motion for rehearing was overruled on February 14, 1917. Their counsel, it appears, did not learn of the overruling of the motion until the lapse of more than thirty days after the date of' the court’s order. They then filed, on April 2, 1917, an amended motion for rehearing, an exact copy of the original, adding only a. statement as to the failure of the Clerk to give them notice of the court’s action on the motion, and their want of knowledge of its action until more than thirty' days had elapsed. The prayer was for a rehearing, but, if that were not granted, that the former order be set aside, “in order that the-right of appellants to have the judgment of the Court of Civil Appeals reviewed by petition for writ of error might be preserved.” On April 11, 1917, the Court of Civil Appeals-by the same order, set aside its order overruling the original motion and overruled the amended motion. The petition for writ of error was filed in the Court of Civil Appeals on May 10, 1917.

We think the motion to dismiss should be granted. In order for this court to have jurisdiction upon petition for writ of error,, it is required, as a condition precedent, that the petition be filed with the Clerk of the Court of Civil Appeals within thirty days-from the overruling of the motion for rehearing in that court. Schleicher v. Runge, 90 Tex. 456, 39 S. W. 279. The statute on the subject (article 1541) is imperative, and, must be complied with. If merely to have-additional time for the filing of the petition, for writ of error successive motions for rehearing may be filed, the statute is rendered of no effect.

There is nothing in this record which even remotely suggests that the order that set aside the former order, overruling the original motion, and overruled the amended motion, was for any other purpose than to permit the filing of the petition for writ of error as within the time required by law, in, accordance with the appellants’ request. We. do not think that fact could be ascertained any more certainly than it here appears. Under such circumstances, we regard it as our duty to treat the time of the overruling of the-original motion as the date from which should be reckoned the thirty days allowed for the filing of the petition for writ of error.

We wish to add that we do not question the authority of the Court of Civil Ap-. peals to set aside its former order, or to make, after its original action in a case, any further orders it might deem proper. It has full control of its judgments during its term. Nor have we any purpose to in anywise cast a doubt upon the good faith of its action. To relieve a seeming hardship it doubtless felt constrained to grant the appellants’ request.

We simply rule that under the circumstances stated we do not consider its action as binding upon us; and that, to give effect to the statute, our duty, under such circumstances, is to require, as essential to our jurisdiction, that the petition for writ of error be filed within thirty days from the overruling of the original motion for rehearing.

It was not filed within that time, and the motion to dismiss is accordingly granted.

HAWKINS, J.

(dissenting). Does the record in this case justify the Supreme Court in finding and holding, as a matter of fact, that the action of the Court of Civil Appeals for the Ninth Supreme Judicial District, in setting aside its order overruling the first motion for a rehearing, was for the sole purpose of indirectly extending the period of time during which a petition for a writ of error might validly be filed, such action constituting a deliberate fraud upon the appellate jurisdiction of the Supreme Court? In my opinion it does not, and upon that proposition alone I dissent from the order granting the motion to dismiss the appeal for want of jurisdiction in the Supreme Court.

The judgment of the Court of Civil Appeals affirming the judgment of the trial court in favor of appellee, the First State Bank of Conroe (defendant in error), and against appellants Fred and Mary Hennings-meyer (plaintiffs in error), was rendered on December 14, 1916, and its order overruling the original motion for a rehearing was made and entered on February 14, 1917. Not until more than thirty days later, on May 10, 1917, was the petition of plaintiffs in error for a writ of error filed in the Court of Civil Appeals.

R. S. art. 1541, expressly requires that a petition for a writ of error “shall be filed with the clerk of the Court of Civil Appeals within thirty days from the overruling of the motion for rehearing”; and it is well settled that failure to file such petition until after the expiration of that stated period is fatal to the appeal. The Supreme Court, in an opinion by Phillips, J., now Chief Justice, said:

“It is essential to the jurisdiction of this court to grant a writ of error that the petition for the writ be filed in the Court of Civil Appeals within thirty days from the overruling of the motion for a rehearing. Schleicher v. Runge, 90 Tex. 456, 39 S. W. 279.” Vinson v. Carter, 106 Tex. 273, 166 S. W. 363.

However, after said original motion for a rehearing had been overruled, appellants filed a second motion for a rehearing which was overruled by the court on April 11, 1917, and, it will bo observed, within the statutory period of 30 days next thereafter, said petition for writ of error was filed; and upon these facts arises the contention of plaintiffs in error that their petition for a writ of error was filed seasonably.

The principal ground upon which the motion to dismiss the appeal rests is:

“Because it is apparent from the face of the record that the setting aside by said Court of Civil Appeals for the Ninth Supreme Judicial District of its order of date February 14, 1917, overruling plaintiff in error’s motion for a rehearing on the 14th day of February, 1917, and overruling plaintiff in error’s amended motion for rehearing on the 11th day of April, 1917, was done for the express purpose of enabling plaintiffs in error to avoid the consequences of their own neglect in failing to file in said court their petition for writ of error within thirty (30) days from said 14th day of February, 1917, and said proceedings were and are in direct opposition to rule 65 (67 S. W. xix), governing the practice in the Courts of Civil Appeals.”

But inasmuch as the term of court at which said order overruling said first motion for a rehearing was made had not ended when said order setting aside the order overruling said first motion for a rehearing was entered, and inasmuch as that court unquestionably had authority, at any time during its term, and even of its own volition, had there been no second motion for a rehearing, to set aside its previous order overruling said first motion for a rehearing, and to grant a rehearing in the cause, there arises, I think, upon the undisputed facts of this case, as shown by the record, a presumption of law that said order of April 11, 1917, setting aside said order overruling the original motion for a rehearing and overruling said second motion for a rehearing was entered by the Court of Civil Appeals in good faith, and that so much thereof as set aside said former order was made by that court in the belief that probably, or possibly, there was error in the original .judgment of that court in that cause, and that, upon renewed consideration of the questions involved, that court again reached the conclusion that its judgment as originally entered therein was correct, and that, as a consequence, said second motion for a rehearing was overruled, accordingly.

The facts relied upon by the defendant in error to overcome the above-mentioned presumption of good faith upon the part of the Court of Civil Axipeals in making its said order of April 11, 1917, are as follows:

In said petition for a writ of error it is stated:

“The appellants, thereafter, on January 4, 1917, filed their motion for rehearing in the Court of Civil Appeals, wherein they complained of all of the errors hereinafter assigned, and said motion, after having been duly submitted and considered, was by the Court of Civil Appeals overruled by an order entered on February 14, 1917. On April 2, 1917, the appellants filed an amended motion for rehearing; this motion is an exact copy of the motion filed on January 4, 1917, except an addition thereto alleging that the clerk of the court had failed to give appellants or their attorneys of record any notice of the action of the court in overruling the motion for rehearing, and that neither appellants nor their attorneys had knowledge or notice of the entry of the order overruling appellants’ motion until the expiration of more than 'thirty days from the date of the order, and the motion prayed for a rehearing, or, in the alternative, that the order overruling the original motion entered on February 14, 1917, be vacated and set aside in order that the right of appellants to have the judgment of the Court of Civil Appeals reviewed by petition for -ftrrit of error might be preserved.”

Said final order, of April 11th, is as follows:

“Former order entered on February 14, 1917, overruling motion for a rehearing is set aside; and the amended motion for a rehearing is overruled.”

Rule 65 prescribed by the Supreme Court for Courts of Civil Appeals is as follows:

“Upon the rendering of the judgment in the Court of Civil Appeals, as well as upon the making of an order overruling the motion for a rehearing, the clerk shall immediately give notice by postal card to the attorneys of the respective parties of the disposition made of the cause or of the motion, as the case may be, for which service he shall tax the usual fee as a part of the costs in the case. But the mailing of such notices shall not relieve the parties of the responsibility of taking notice of the disposition of the cause or motion, and the failure to receive a notice so mailed shall be no excuse for delay in taking future action as may be desired in reference to the case within the time prescribed by the statutes and rules.”

It is therefore clear that failure to file the petition for a writ of error within the statutory period cannot properly be excused, condoned, or disregarded by the Court of Civil Appeals or by the Supreme Court upon the sole additional ground for a rehearing pleaded in said second motion. Furthermore, it must be conceded that the fact that, with the exception of the additional statements showing want of notice or knowledge of the overruling of the first motion for a rehearing, the second motion was an exact copy of the first motion for a rehearing, coupled with the fact that said second motion candidly prayed that the former order overruling the original motion for a rehearing be set aside in order that the right of appeal might be preserved, and the further fact that the court undertook, by one and the same order, to set aside its former order refusing a rehearing and to overrule said second motion therefor, do strongly suggest that such final order was not really made by the court solely upon the merits or pretended merits, of said second motion for a rehearing, or in good faith, but, if not for the purpose, still, under such circumstances as to serve, in the language of the attorneys for the defendant in error, “to cloak the negligence of the plaintiffs in error in failing to file their petition for writ of error within the time required by law.” Indeed that view of the matter is borne in upon my mind so strongly that I might feel impelled to act upon it, as a matter of duty in the protection of the jurisdiction of the Supreme Court, had that court no other protection or recourse; but such is not the case.

Our state Constitution expressly declares:

“The Supreme Court shall also have power, upon affidavit or otherwise as by the court may be determined, to ascertain such matters of fact as may be necessary to the proper exercise of its jurisdiction.” . Section 3, art. 5.

R. S. art. 1525, is as follows:

“The Supreme Court shall have the power, upon affidavit or otherwise, as the court may determine, to ascertain such matters of fact as may be necessary to the proper exercise- of its jurisdiction.”

The stated power of that court has been exercised in numerous instances. Harris v. Hopson, 5 Tex. 529; Dial v. Rector, 12 Tex. 99; Johnson v. Robeson, 27 Tex. 526; Moke v. Brackett, 28 Tex. 443; Hart v. Mills, 31 Tex. 304; Simmons v. Fisher, 46 Tex. 126; Fine v. Freeman, 83 Tex. 529, 17 S. W. 783, 18 S. W. 963; Abstract Co. v. Bahn, 87 Tex. 582, 29 S. W. 646, 30 S. W. 430; Ellis v. Brooks, 101 Tex. 591, 102 S. W. 94, 103 S. W. 1196. See, also, City of Austin v. Nalle, 85 Tex. 550, 22 S. W. 668, 960. It is peculiarly applicable, I think, to the facts and circumstances of this case, as indicated by the record, and should be appropriately exercised therein preliminarily, in determining, definitely and unmistakably, if possible, whether said final order of the Court of Civil Appeals really was made in good faith or in fraud of the appellate jurisdiction of the Supreme Court.

Whenever conclusive evidence thereon reasonably is obtainable, the presumptions of regularity and good faith should attach to all orders of all courts until such presumptions shall have been overthrown. 
      ©u^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     