
    GULF, C. & S. F. RY. CO. v. MUSE, District Judge.
    (No. 3134.)
    (Supreme Court of Texas.
    Jan. 8, 1919.)
    1. Courts <&wkey;30> — Court’s Jurisdiction.
    Ordinarily, court’s jurisdiction over subject-matter and parties, once fully attached in a cause, continues until all issues both of fact and of law have been finally determined.
    2. Courts <&wkey;66(7) — Terms — Construction of Statute.
    Bev. St. 1911, art. 1726, authorizes, not the calling of a new distinct or independent term, but merely the continuance of same term, so that during period of extension court necessarily possesses the same power as during original term.
    3. Judgment <&wkey;298 — Amendment — Same Term.
    Court may revise any judgment, decree, or order at term at which it was rendered.
    4. Judgment <5&wkey;341 — New Trial <&wkey;165— Vacation — Same Term.
    Any judgment, decree, or .order, including order granting new trial, may be vacated by court at term at which it was rendered.
    5. IVords and Phrases — “Trial.”
    “Trial,” given its ordinary and accepted meaning, means the judicial investigation and determination of issues between parties.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second 'Series, Trial.]
    6. Appeal and Error <&wkey;933(l) — Validity of Order — Presumptions—Regularity.
    An <jfder vacating an order granting new trial, dated same day that final judgment was entered, will be presumed, in absence of anything to the contrary, to have been rendered prior to entry of final judgment under presumption that it was regularly and lawfully made.
    7. Courts <&wkey;66(7) — Extension of Term-Validity of Order — Trial.
    Where court extended term under Rev. St. 1911, art. 1726, “until the conclusion of said pending trial,” an order made before entry of final judgment vacating order granting a new trial was rendered during such extended term; the granting of such motion before entry of final judgment being part of the trial.
    8. Mandamus <&wkey;4(4) — Vacating Judgment —Remedy by Appeal.
    The right to have a judgment reinstated and enforced by mandamus is not affected by the fact that an appeal from such judgment can be taken or a writ of error to review judgment secured on a retrial.
    9. Mandamus &wkey;s9 — Successive Proceedings — Enforcement of Judgment.
    The Supreme Court, under Const, art. 5, § 3, may issue writ of mandamus to require district court to enforce judgment, although prior thereto the Court of Civil Appeals under Rev. St. 1911, art 1595, has issued a writ of mandamus directing court to retry case.
    Mandamus by the Gulf, Colorado & Santa Fé Railway Company against ‘the Honorable E. B. Muse, District Judge.
    Writ issued.
    F. J. Wren, of Ft. Worth, E. M. Browder, of Dallas, Lee Lomox & Smith, of Ft. Worth, and Terry, Cavin & Mills, of Galveston, for plaintiff.
    Geo. A. Harmon and Marcus M. Parks, both of Dallas, for defendant.
   GREENWOOD, J.

The district court of Dallas county was engaged in the trial by jury of a cause, numbered 22277B, wherein H. L. Collier was plaintiff and the Gulf, Colorado & Santai Fé Railway Company was defendant, at its January term, 1917, without time to complete the trial before the expiration of the term, whereupon the presiding judge extended the term by the following order, duly entered on the minutes on March 31, 1917, to wit:

“Whereas, the trial of the above entitled and numbered cause commenced on March 19, 1917, and
“Whereas, the end of the January term, 1917, is at hand, said term ending March 31, 1917, and
“Whereas, the trial of the above numbered and entitled cause has not been concluded but is still in progress, and
“Whereas, it will take some time to conclude the trial of said cause:
“Therefore, I, E. B. Muse, the presiding judge of the Forty-Fourth district court, with the power vested in me by the statutes of the state of Texas, under article 1726, do deem it expedient and necessary that the rights of all parties may be preserved and protected, do extend the January term, A. D. 1917, of said court until the conclusion of said pending trial; the extension of said January term 'being intended to cover such time as necessary to finish and complete the trial of said above numbered and entitled cause, and extension of said trial will include and is intended to include the conclusion of this trial in the ordinary, legal and statutory manner, the submission of the cause to the jury, their deliberation, and finding upon same, the filing of a motion for new trial, if same becomes necessary 'by either party, and the action of the court upon such motions as may be necessary and become incident thereto under the statute growing out of said trial. This term is extended to include everything under the law that is necessary to be done to make a full and complete conclusion of said pending trial now in progress in this court.”

On April 11, 1917, the jury returned a general verdict in favor of the plaintiff, against the defendant, for the sum of $4,000, and the verdict was duly noted on the docket.

Within two days after the verdict was rendered, the plaintiff filed a motion for a new trial, which was afterwards amended, and on June 2, 1917, the court made and entered an order finding that the motion was well taken and adjudging that a new trial be granted.

Immediately after the announcement by the court of this order, on plaintiff’s motion for a new trial, the defendant, on June 2, 1917, filed a motion for a rehearing and to set aside said order, and the court directed counsel for the respective parties to submit in writing such briefs and arguments on defendant’s motion as they might desire to present. Un compliance with the court’s direction, counsel on both sides submitted written briefs and arguments, the last being in behalf of plaintiff and being filed on September 15, 1917.

The court took defendant’s motion, and the briefs and arguments thereon, under advisement until October 5, 1917, when it granted the motion by the following order, to wit:

“The court having had under advisement the motion of defendant filed herein June 2, 1917, asking for a reconsideration of, and a rehearing on, the order of this court made June 2, 1917, sustaining plaintiff’s motions for a new trial and granting the plaintiff a new trial and of said motions, and said motion and the arguments of counsel for plaintiff and defendant thereon having been duly considered by the court, and the court being fully advised in the premises: Now on this date, in open court, it is ordered, adjudged, and decreed by the court that said defendant’s motion for rehearing be granted and that the order at this extension of term heretofore made on June 2, 1917, granting plaintiff a new trial herein, be set aside, and held for naught, and plaintiff’s original and amended motions for new trial being now fully considered, they and each of them are in all things overruled, to which ruling of the court the plaintiff H. L. Collier in open court excepted and gave notice of appeal to the Court of Civil Appeals for the Fifth Supreme Judicial District sitting at Dallas. And on motion of plaintiff, 90 days is hereby granted to plaintiff from and after this date in which to prepare and file statement of facts and bills of exception. And now by this order the said above cause being finally disposed of in this court under the extension of the January term of this court made March 31, 1917, for the completion of the trial of said cause and all orders and motions incident thereto as per the terms of said order, the said extension of said January term of this court is now here declared closed on this October 5, 1917.”

The court, on the same day, viz. October 5, 1917, caused to be entered on the minutes, “as of April 11, 1917,” a final judgment, in conformity with the verdict, in favor of the plaintiff and against the defendant for $4,000, with interest from April 11,1917, at the rate of 6 per cent, per annum and all costs, for which execution was ordered to issue. Prior to October 5, 1917, no judgment had been entered on the verdict.

At the October term of the court, the plaintiff filed a motion to set said cause for trial, which was overruled, and thereupon plaintiff filed his original proceeding for mandamus against the district Judge in the Court of Civil Appeals of the Fifth Supreme Judicial District of Texas, and in said proceeding, on October 27,1917, obtained the following judgment, to wit:

“This cause came on to be heard, the application of relator, H. L. Collier, for a writ of mandamus, to compel the respondent, Hon. E. B. Muse, judge of the Forty-Fourth judicial district, Dallas county, to proceed to trial and judgment in the case of H. L. Collier v. Gulf, Colorado & Santa Fe Railway Company, No. 22277B, now pending in said court, and the same being inspected, because it is the opinion of this court that the trial of said cause was concluded upon the granting of plaintiff’s motion for a new trial by said court, that the extended term of that court thereupon ended, and all subsequent orders made in the case were without authority of law and void: It is therefore considered, adjudged, and ordered that the application be granted, and that the writ of mandamus issue, commanding the respondent to proceed to the trial of said cause No. 22277B.”

On September 4, 1918, the Chief Justice of ' the Supreme Court, in vacation, granted a temporary writ of prohibition, directing the district judge to desist from a new trial of the cause, which he had ordered in compliance with the judgment of the Court of Civil Appeals, until this proceeding could be heard and determined by this court.

It will aid in the correct determination of the validity of the order of the trial court, setting aside its previous order for a new trial, to bear in mind the following thoroughly established principles: Firsts that ordinarily the jurisdiction of a court over both subject-matter and parties, once fully attached ip a cause, continues until all issues both of fact and of law have been finally determined. Second, that article 1726, Rev. St., authorizes, not the calling by the district judge of a new, distinct, or independent term, but merely the continuance of the same term, so that duying the period of extension under the article the court necessarily possesses the same power as during the original term. 15 C. J. 886; Bank v. Withers, 6 Wheat. 106, 5 L. Ed. 217; Keith v. Ala., 91 Ala. 2, 8 South. 353, 10 L. R. A. 432. And, third, that it is within the power of the court, at the same term, to revise or vacate any of its judgments, decrees, or orders, including orders granting new trials. Blum v. Wettermark, 58 Tex. 125; Nowlin v. Hughes, 2 Willson, Civ. Cas. Ct. App. § 313; Hume v. John B. Hood Camp Confederate Veterans (Civ. App.) 69 S. W. 643; Watson v. Williamson, 33 Tex. Civ. App. 269, 76 S. W. 794; Ry. Co. v. Hugen, 45 Tex. Civ. App. 329, 100 S. W. 1000.

It follows that, if the order vacating the award of the newt trial was made before the end of the extended term, its validity is beyond question. The district judge extended the term “until the conclusion of said pending trial.” The honorable Court of Civil Appeals determined that the “trial of said canse was concluded upon the granting of plaintiff’s motion for a new trial,” and that was on June 2, 1917.

The language of article 1726 has not heretofore been construed by this court; but we think that the words “conclusion of such pending trial,” as used in said article, cannot be properly given such a restricted meaning as is required to support the decision of the Court of Civil Appeals.

Giving the word “trial” its ordinary and accepted meaning in law of “the judicial investigation and determination of the issues between parties” (Century Dictionary; 28 A. & E. Enc. of Law, 636), it would just as much include the action of the court on a motion, presented immediately after an order had been rendered granting a now trial, to set aside such order, as it would include the action of the court in granting a new trial. The court possessed the same control over the order as over the final judgment, and there is no essential difference in the limitations imposed in each case, by the expiration of the term, on the exercise of such control. The duty of the court to correct error or injustice in its previous action was the same, whether the error or injustice inhered in the final judgment, or in steps leading thereto, or in the award of the new trial.

The decisions of this court furnish no warrant for holding that the trial of this case was concluded on June 2, 1917. Not only did the presiding judge consent to consider a motion for rehearing immediately after announcing the award of the new trial, and not only was the motion for rehearing, forthwith and on the same day filed, but the record shows that no final judgment on the verdict was entered until the 5th day of October, 1917. Had it not been decided, it would seem clear that the district court could not intend to close an extension of a term ordered for the express purpose of making “a full and complete conclusion” of a pending trial before the entry of final judgment. However, when the question was presented to this court as to whether a trial had been concluded pri- or to the entry nunc pro tune of final judgment, in order to determine whether a statement of facts had been filed within the prescribed time after the adjournment of the term at which the trial was had, it was answered in the negative. The opinion, by Chief Justice Brown, declares:

“Plaintiff in error contends that the trial court had no authority, after the adjournment of the term at which the trial was had, to make up a statement of facts proved at the hearing. Article 1379, Revised Statutes, contains this provision: ‘After the trial of any cause, either party may make out a written statement of the facts given in evidence on the trial, and submit the same to the opposite party, or his attorney, for inspection,’ etc. It is also provided by an act of the Twenty-Eighth Í Legislature that, ‘by an order entered during the term, the court may authorize a statement of the facts to be made up in vacation, within twenty .days after the adjournment of the term.’ Laws 28th Leg. 32. It is true that, without such order, no statement of facts can be made after an adjournment of the term of the court at which the trial is concluded; but the phrase, ‘after the trial,’ denoting tjie time when the statement may be made, is broad enough to embrace the entry of the judgment nunc pro tunc as a part of the trial, justifying the court in making and certifying to the statement of facts after judgment was actually entered. Hill v. State, 41 Tex. 255; Sabine & E. T. Ry. Co. v. Joachimi, 58 Tex. 454; Jenks v. State, 39 Ind. 1.” Palmo v. Slayden & Co., 100 Tex. 15, 92 S. W. 797.

The case of Hill v. State, 41 Tex. 255, decides that—

“The trial may well be held incomplete until all the issues of law as well as of fact have been determined and the final judgment entered.”

The Court of Appeals had asked the question:

“Does the trial embrace the final judgment?” And had answered: “We think so, unquestionably. The trial has not terminated until the final judgment has been entered and the sentence pronounced.” Mapes v. State, 13 Tex. App. 91.

The Supreme Court of California likewise concluded that—

“Until the decision itself has been entered in the minutes, or reduced to writing by the judge and signed by him and filed with the clerk, the case has not been tried to a legal intent.” Hastings v. Hastings, 31 Cal. 98.

Giving the order on defendant’s motion the benefit of the presumption always indulged, in the absence of anything to the contrary, that it was regularly and lawfully made, we would be required to presume, if necessary to uphold same, that, being dated the same day as the order for the entry of the judgment, it was rendered prior thereto. Winder v. Winder, 86 Neb. 496, 497, 125 N. W. 1095; Skinner v. Roberts, 92 Ga. 366, 17 S. E. 353; Forrer v. Coffman, 64 Va. 878; Gammage v. Moore, 42 Tex. 170. And we could not say that, being rendered prior to the entry of final judgment, it failed to antedate the full and complete conclusion of the trial. Until the trial was fully and completely concluded, the extension of the term had not expired by the unequivocal terms of the order.

We conclude that, on the facts shown by this record, the extension of the January, 1917, term had not expired when the court, on October 5, 1917, vacated the order for a new trial, and hence the final judgment on the verdict of the jury is in full force and effect.

And we have no doubt that the defendant is entitled to enforce by mandamus bis clear legal right to have the reinstated judgment respected and enforced. It is no sound objection to the award of the mandamus that the defendant might finally secure a review of an adverse judgment following a retrial, by means of appeal to the Court of Civil Appeals and writ of error to the Supreme Court. For it has been’ the law of Texas since Bradley v. McCrabb, Dallam, 507, that the writ of mandamus “will not only issue, in cases where the party having a specific legal right has no otner legal operative remedy, but, where the other modes of redress are inadequate or tedious, the writ will be awarded." Not only would the remedy to defendant of appeal and writ of error, after another trial, be manifestly tedious, but such remedy would also be inadequate; for it is the very essence of defendant’s right that it is entitled not to have to respond further to plaintiff’s cause of action than by payment of his judgment. Justice Ramsey, in speaking for the court in Wright v. Swayne, 104 Tex. 444, 140 S. W. 222, Ann. Cas. 1914B, 288, said:

“If the court should willfully refuse to execute its own judgments according to their true intent and effect, we would have the authority and it would be our duty to direct it to proceed to execute the judgment and sentence of the law.”

But it is insisted that since article 1595, Rev. St., confers on our Courts of Civil Appeals, or any judge thereof, in vacation, original jurisdiction to compel a district judge to proceed to trial in any cause, and since in the exercise of that jurisdiction a mandamus has been awarded by the Court of Civil Appeals of the Fifth District commanding the district judge to try this cause, we are bound by that award.

Section 3 of article 5 of the Constitution authorized the Legislature to “confer original jurisdiction on the Supreme Court, to issue writs of quo warranto and mandamus in such cases as may be specified, except as against the Governor of the state.” Under that authority the Legislature has conferred on this court original jurisdiction- to issue writs of mandamus, “agreeable to the principles of law, regulating such writs against any district judge or Court of Civil Appeals or judge of the Court of Civil Appeals, or officer of the state government, except the Governor of the state.” Vernon’s Ann. Civ. St. Supp. 1918, art. 1526, Rev. St.

It is inconceivable, in view of the express language' of this article and the respective jurisdictions of the Supreme Court and of the Courts of Civil Appeals, that it was ever intended by the Legislature that this court should be precluded from granting full relief to one whom it found entitled- to the writ of mandamus, under the law governing that writ, by reason of a contrary opinion of the Court of Civil Appeals. While the acts of those courts, under the authority conferred by article 1595 are entitled to, and will always receive, our utmost consideration, they cannot control the exercise of this court’s original jurisdiction; and, of course, when a judgment is pronounced in the exercise of that jurisdiction, all writs necessary for its enforcement may be issued. Pickle v. McCall, 86 Tex. 212, 24 S. W. 265; Hovey v. Shepherd, 105 Tex. 237, 147 S. W. 224.

It is therefore ordered that the clerk of this court issue the writ of mandamus, directed to the respondent, commanding him to enforce the final judgment heretofore entered on the minutes of the district court of Dallas county, Forty-Fourth judicial district, in cause No. 22277B, styled H. L. Collier v. Gulf, Colorado & Santa Fé Railway Company, and to proceed no further with a new trial of said cause so long as said judgment remains unreversed. 
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