
    WICHITA FALLS TRACTION CO. v. COOK, Judge, et al.
    No. 1422—6213.
    Commission of Appeals of Texas, Section B.
    May 26, 1933.
    See, also, 50 S.W.(2d) 422.
    Wm. N. Bonner and Virgil Childress, both of Wichita Falls, for. relator.
    E. W. Napier, of Wichita Falls, for respondents.
   SHORT, Presiding Judge.

This is an original application filed in the Supreme Court for the issuance of a writ of mandamus and of prohibition, requiring the respondents, one of whom was originally the Honorable W. W. Cook, judge of the Seventy-Eighth district court of Wichita county,

Tex., and another of whom is his successor. Honorable Irwin J. Vog'el, requiring each of them to observe and respect the judgment entered December 5, 1931, in favor of the relator, Wichita Falls Traction Company, wherein the respondent Mrs. Pearl Tedford had previous to that time recovered a judgment for $13,000 against the rejator, which judgment had been entered and was after-wards vacated, and a judgment entered in favor of relator that Pearl Tedford take nothing and pay the cost of suit.

The regular term of court, in which the ease of Mrs. Peai-1 Tedford instituted against the relator for damages was tried to a jury and in which a judgment for $13,000 was rendered in favor of Mrs. Tedford against relator, finally terminated in a regular way on the 5th day of. December, 1931, it having convened on the first Monday in September, and continued until the Saturday preceding the first Monday in December, the jury having rendered a verdict against the relator on October 14, 1931, and the relator having filed a motion for judgment in its favor, which was overruled. On October 23, 1931, the court sustained a motion filed by Mrs. Tedford for judgment, and the judgment for $13,000 in favor of Mrs. Tedford and against the relator, Wichita Falls Traction Company,, was entered. A judgment was entered discharging the defendant Albert Liemkuhler, who was a codefendant with the relator, growing out of the fact that there was a collision between an ambulance driven by Albert Liemkuhler and one of relator’s cars, wherein Mrs. Tedford was injured.

In due time the relator filed its motion for a new trial. This motion was sustained, and a judgment was finally entered on the minutes of the court on Saturday evening about 5 p. m. December 5, 1931, setting aside the original judgment in favor of Mrs. Tedford and entering a judgment in favor of the relator that she take nothing by her suit, and pay all costs. Appended to this judgment was the following statement made at the instance of the counsel representing Mrs. Ted-ford: “To which action of the court the plaintiff, Pearl Tedford and the defendant, Albert Liemkuhler, in open court duly and seasonably excepted, and gave notice of appeal to the Court of Civil Appeals for the Second Supreme Judicial District of Texas, at Fort Worth.”

No motion of any character whatever was thereafter filed by Mrs. Tedford, or by any one for her during such regular September term of the court, which ended by operation of the law December 5, 1931, but at the request of counsel for Mrs. Tedford, the respondent Cook, as judge of the Seventy-Eighth district court, made and entered on the minutes before the adjournment of the regular term in the cause of Tedford v. Wichita Falls Traction Company, No. 24508, the following order:

“This the 5th day of December A. D. 1931.
■ “It appearing to the Court that it is impracticable to conclude the trial of this cause at the present term, the present term is hereby extended for the purpose of concluding this case until and including the 1st day of February, A. D. 1932.”

On February 20, 1932, counsel representing Mrs. Tedford filed in said cause a motion indorsed “Plaintiff’s First Amended Motion for Judgment and New Trial,” alleging ei*ror committed by the court in sustaining the relator’s motion to set aside the original judgment in favor of Mrs. Tedford and entering a judgment in favor of the relator, and praying that the judgment rendered in favor of the relator be set aside, and the judgment rendered upon the jury’s verdict in favor of the plaintiff Mrs. Pearl Tedford, for the sum of $13,000, with interest and cost of suit, be re-entered. Thereafter, on- the oral request of counsel representing Mrs. Tedford, the respondent Cook, as judge, signed, and there was entered on the minutes, an order in cause No. 2450S previous to the 1st day of February, 1923, as follows:

“Whereas, on the 5th day of December, A. D. 1931, the court entered an order extending the September term, A. D. 1931, of this court until and including the 1st day of February A. D. 1932, for the purpose of concluding the trial of the above styled and numbered cause, and it now appearing that it will be impracticable to conclude this case within the time stated;
“It is, therefore, ordered that the September term, A. D. 1931, be and is hereby further extended until and including the 1st day of April, A. D. 1932, for the purpose of concluding said case.”

The- date of this order was March 31, 1932, at the end of which appears the following: “Defendant excepts, Wichita Falls Traction Co., duly excepts.”

After the foregoing proceedings had occurred, the counsel for Mrs. Tedford, on the same date, filed with the clerk of said court in said cause a motion by permission of the court, styled “Second Amended Motion for Judgment and New Trial,” praying in substance the same as the motion filed January 26,1932. Thereafter, on the same day, March 31, 1932, counsel for Mrs. Tedford signed and filed with the clerk another instrument in words and figures identical with the judgment first entered on October 23, 1931. At the bottom of the judgment and over the court’s signature there was written the following: “To all of which defendant, Wichita Falls Traction Company, duly excepts,” and the order granting Mrs. Tedford’s motion for judgment was changed .so as to read as follows:

“April 1, 1932.
“After due and reasonable notice came on to be heard the plaintiff’s motion to disregard tRe jury’s- findings in response to Special Issue No. 4 on tlie ground that the same Ras no support in evidence and to set aside tRe judgment .Reretofore rendered in favor of tRe WieRita Palls Traction Company, and to enter judgment Rerein in favor of tRe plaintiff and against tRe defendant, WieRita Palls Traction Company, for tlie sum of ⅜13,000.00 togetRer witR interest tRereon from date until paid at tRe rate of 6 per cent per annum, and for all costs of suit, and discRarging tRe defendant, Albert Liemkuhler, from any liability in tRis case, and after duly considering said motion as well as tlie motion filed by tRe WieRita Palls, Traction Company for judgment in its favor, tlie court is of the opinion tRat the law is witR tRe plaintiff.
“It is, tRerefore, ordered, adjudged and decreed by tRe court tRat the motion of tRe defendant, WieRita Palls Traction Company, be, and tRe same is Rereby overruled, and tRat tRe plaintiff’s motion be and tRe- same is Rereby sustained, and tRat tRe judgment heretofore rendered in favor of the defendant, WieRita Palls Traction Company is Rereby set aside and judgment is herein rendered in favor of the plaintiff in accordance with said motion as fdllows. * ⅜ * ”

On April 1, 1932, respondent W. W. Cook, as judge, signed; and there was entered on the minutes, an order in cause No. 24508, as follows: •

“Whereas, in the above cause, without notice to or consent of defendant, Wichita Palls Traction Company, an order was entered December 5, 1931, extending the September term of this court until February 1st, and on February 1st, in the same way and manner, another order was entered extending the September term of April 1, 1932, for purposes in connection with the above entitled cause, reference being made to said orders, and
“Whereas on this day, on the request of plaintiff, Mrs. Pearl Tedford, the judgment in favor of the defendant, Wichita Palls Traction Company, has been set aside and judgment entered in favor of plaintiff against Wichita Palls Traction Company for $13,-000.00 over the objection and exception of defendant; and the court deems it proper to extend the time within which the defendant may file motions and exceptions and procure necessary orders, etc.,
“TRerefore, it is ordered, adjudged and decreed by the court that this case be continued and that the same term be and it is Rereby extended to and including May 1,1932.”

On April 27, 1932, said respondent Cook, as judge, signed, and ordered filed in -cause No. 24508, another order, as follows:

“Whereas, in the -above cause, an order was entered December 5, 1931, extending the September term of this court until February 1, 1932, and on February 1st, in the same manner, another order was entered extending the September term to April 1,19,32, reference to all said orders being made Rereby; and
“Whereas, on the 31st day of March, 1932, on the request of plaintiff, Mrs. Pearl Ted-ford, the judgment in favor of the defendant, Wichita Palls Traction Company, was set asjde and judgment entered in favor of plaintiff: against Wichita Palls Traction Company for $13,000.00, over the objection and exception of defendant; and the court at that time deemed it proper to extend the September term in order to give defendant time within which to file motions, exceptions, procure necessary orders, etc., and
“Whereas, an order was thereupon entered extending said term to and including May 1, 1932, and
“Whereas, it now appears that the time given is insufficient and inadequate for defendant to complete the preparation and entry of the proper motions, exceptions, and orders, and it is necessary that further time be granted within which such preparation, execution, filing and entry of motions, exceptions and orders may be completed, and for these and other good and sufficient reasons the court deems it proper to further extend the September term of this court for the full and final disposition of this cause;
“Therefore, it is ordered, adjudged and decreed by the court that this case be continued and that the said term be and is Rereby extended to and including June 1, 1932.”

The relator made an application to the honorable Court of Civil Appeals of the Second Supreme Judicial District of- Port Worth similar to this application, which was dismissed for want of jurisdiction, and there was filed in the -Supreme - Court on May 25, 1932, this application, permission to file having been previously granted, and the matter was referred to Section B. In the meantime orders had been entered upon the minutes of the district court of Wichita county in said cause, extending the September term, 1931, to the 31st day of May, 1933.

The proceedings which have been heretofore outlined were had by virtue alone of article 1923, R. S. 1925. This article reads as follows: “Whenever a district court shall be in the midst of the trial of a cause when the time for the expiration of the term of said court arrives, the judge presiding shall have the power and may, if he deems it expedient, extend the term of said court until the conclusion of such pending trial. The extension of such term shall be shown in the minutes of the court before they are signed. If the term is extended as herein provided, no term of court in any other county shall fail because thereof, but the term of court therein may be opened and held as provided by law when the district judge fails to appear at the opening of a term of court.”

The authorities construing this article, while to some extent conflicting on account of the difference in the facts, demonstrate the fact to he that the language thereof should he liberally construed. This tendency of the court is illustrated by the opinion of Justice Greenwood in Gulf, Colorado & Santa Fe Ry. Co. y. Muse, 109 Tex. 352, 207 S. W. 897, 4 A. L. R. 613. We would not have any difficulty under the authorities of the case last cited, as well as other eases, including that of Stephenson v. Nichols (Tex. Com. App.) 286' S. W. 197,199, in reaching the conclusion that the several orders of the district judge of Wichita county, in cause No. 24508, were valid ones, and that their legal effect was to extend the term of the September term of 1931 of said district court in accordance therewith, and that the judgments entered in said cause by said court, during such extension, were properly entered, were it not for the fact that it is clearly shown by the record that Pearl Tedford had not filed any motion to set aside the judgment rendered in favor of the relator and to reinstate the judgment rendered in her favor against said relator at the time the regular term of said court expired by operation of law, and that she did not file any such motion until the 26th day of January, 1932. The record also fails to disclose any reason why this motion was not filed during the regular term. Had said motion been filed, under the authority of the Muse Case, as well as others, the jurisdiction over said cause of the court would have continued, and every presumption would be indulged in favor of the proper exercise of such jurisdiction. “Whenever all judicial acts appertaining to the trial of a given case have been done, which have been duly invoked, and which are required by law to be done during the term in which the trial is had, and due entry has been made of all such of these judicial acts as are required by law to be entered in the court record, the trial of such ease is concluded within the meaning of the statute.” Stephenson v. Nichols, supra ; 11 Texas Jurisprudence, par. 73.

Thus, when the trial court had granted a motion for a new trial, the case was finally disposed of, and there was nothing left upon which the court might exercise jurisdiction,' and in consequence of which subsequent at-' tempts to make orders were void. Knight v. State, 99 Tex. Or. R. 15, 267 S. W. 983; Drane v. Humble Oil & Refining Company (Tex. Oiv. App.) 4 S.W.(2d) 241.

We are constrained to conclude, therefore, that, in said cause No. 24508, the district court of Wichita county had lost jurisdiction of this ease, on December 5, 1931, when it attempted to extend the regular term of said court. The mere fact that the trial judge was not satisfied with the order he had made in setting aside the original judgment in favor of the relator could not have the legal effect to authorize the order extending the term under the terms of the statute. However liberal the courts have been in construing the language of this statute, they have not permitted trial judges to extend the term® of a court to suit their convenience or for purposes of their own, however praiseworthy such purposes may be.

In other words, we are of the opinion that the said district court of Wichita county was not “in the midst of the trial” of the cause of Pearl Tedford against the Wichita Falls Traction Company on the evening of December 5, 1931, when the order of that date was made, but that the court had lost jurisdiction of this cause when it granted the relator’s motion to the extent of setting aside the judgment, which had before that time been rendered in favor of Pearl Tedford upon the verdict of a jury. The court had authority to grant the motion of relator, to the extent of setting aside the judgment rendered upon the verdict of the jury in favor of Pearl Tedford, and, no motion to set aside this order having been filed during the regular term of the court, there was no basis for the court to act, as it attempted to act -in extending the term of said court beyond the regular term. Such being the situation, anything and everything which the court did, after the end of the regular term, was vpid.

While we hold that such orders, as were made after the expiration of the regular term, are void, it being apparent that the case of Pearl Tedford against Wichita Falls Traction Company and another was tried to a jury, and the judgment in favor of Pearl Tedford was entered upon the verdict of a jury, in view of the further fact that the record shows without dispute that the trial judge was not content to give the relator a new trial, but went further and attempted to supersede the effect of the findings of fact by the jury, and to render a judgment of its own contrary to that rendered, which was based upon the verdict of the jury, which was an invasion of the rights of Pearl Ted-ford, who had a right to have the facts passed on by a jury,-this action was also void. The judgment grafting a new trial in favor of the relator was a valid judgment and has remained valid from that day to this. So much of said judgment, as attempts to render a judgment in favor of the relator and against Pearl Tedford, was an attempted exercise of power not given the trial court under the law, and so much of said order as attempts to render a judgment in favor of relator and against Pearl Tedford was a nullity and so remains. The effect of the order of December 5,1931, in so far as it was valid, was to set aside all the proceedings in the case which had been had during the term and left the case for trial just as though no proceedings had ever been had.

Article 2232, R. S. 1925, authorizes trial courts to grant new trials and to set aside judgments for good causes on sucli terms as the court shall direct, and provides that such motion shall be made within two days after the rendition of the verdict if the term of court shall continue so long; if not, then before the end of the term, and may be amended under leave of the court. We find in this article all the law authorizing the court to give relief to a defeated litigant. The granting of a new trial means that the case shall be reinstated upon the docket of the trial court and stand for trial the same as though no trial had been had. If the court thinks that the ends of justice have not been attained by the verdict of the jury, it is clearly its duty to set aside the judgment rendered on the verdict. Texas & P. R. Oo. v. Casey, 52 Tex. 112.

A trial by a jury is a lawful right given to litigants, and, when that right has been invoked, the procedure incident thereto must be followed. It is the peculiar province of the jury to find the facts of the case, and no court has the right to substitute its own findings of fact and render judgment thereon in opposition to the findings of fact by a jury. It can only set aside the verdict of the jury and the judgment rendered thereon, the effect of which is to reinstate the case upon the docket in the same situation as it was before there was a trial.

The court’s action in setting aside the judgment in favor of Pearl Tedford upon the jury’s findings of fact operated to set aside the verdict merged with the judgment, and grant a new trial, after which the case stood on the docket as if it had never been tried. In other words, the setting aside of the judgment, rendered upon the verdict of the jury, was tantamount to granting a new trial, and another judgment could not be entered without another trial. Smith v. Thornton, 119 Tex. 314, 29 S.W.(2d) 314.

It therefore follows that so much of said order of December 5, 1931, as attempts to render a judgment in favor of the relator and against Pearl Tedford, is a. nullity.

The legal effect of the conclusions we have reached as to the status of cause No. 24598 upon the docket of the Seventy-Eighth district court of Wichita county is that this cause stands for trial. upon that docket as though it had never been tried, and we will assume that the present judge of the Seventy-Eighth district court of Wichita county will proceed in this case as though cause No. 24508 had never been tried.

We therefore recommend that relator’s petition for writ of- mandamus bo denied.

CURETON, Chief Justice.

The opinion of the Commission of Appeals is adopted, and mandamus refused.  