
    DIAMOND ICE &. COLD STORAGE CO. v. STRUBE.
    (No. 820-4418.)
    (Commission of Appeals of Texas, Section A.
    June 9, 1926.)
    Appeal and error t@=o345(l)— Court held to have jurisdiction to. consider - undetermined motion for new trial and amended motion filed more than 45 days after filing original motion, so that appeal could properly be perfected within statutory time from determination of motions (Acts 38th Leg. [1923] .c. 105, §§ 14-17).
    Where motion for new trial was filed within 10 days under Acts 38th Leg.' (1923) c. 105, § 15, but not disposed of for 54 days thereafter, when amended motion was filed, held, that court had jurisdiction to consider motions at that time, in view of sections 14 and 16, and therefore appeal perfected within time required by section 17 from disposal of amended motion was timely.
    <S=»For other oases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes
    Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.
    Suit between Diamond lee & Cold Storage Company and E. F. Strube. From a judgment for the latter, the former appealed. A motion to dismiss the appeal was denied by the Court of Civil Appeals. On certified question.
    Question answered.
    
      J. A. Templeton, of Port Worth, for appellant.
    Olay Cooke and W. D. Nicholson, both of ' Port Vorth, for appellee.
   NICKELS, J.

The case was tried in one of the district courts whose procedure is governed, in part, by chapter 105, Acts of the Thirty-Eighth Legislature, Reg. Session, 1923, (article 2092, R. S. 1925). Judgment was rendered October 20, 1924. Original motion for new trial was filed October 25, 1924. No disposition of that motion was made except as noted below. Oh December 18, 1924, the court granted leave for the purpose and an amended motion for new trial was filed. On the same day (December 18, 1924) both motions were overruled. The actions taken on December 18, 1924, were opposed by the adverse party. Thereafter, on January 15,1925, appellant Diamond Ice & Cold Storage Company perfected its appeal, by filing its super-sedeas bond, and this was done within the time 'prescribed in section 17 of the act mentioned, if the court had authority (under sections 14, 15, and 16 of the act, quoted in full in Townes v. Lattimore, 114 Tex. 511, 272 S. W. 435) to consider and dispose of the motions (or either of them) on December 18, 1924 — otherwise, attempted perfection of the appeal was too late.

When the ease reached the Court of Civil Appeals, E. F. Strube duly filed and presented his motion to dismiss the appeal because, he asserted, jurisdiction in the district court had ceased prior to December 18, 1924. This motion was overruled. Motion for rehearing was filed and now pends. The Court of Civil Appeals has certified this question:

“Did this court err in overruling the motion to dismiss the appeal for want of jurisdiction?”

Portions of the statute in question were before the Supreme Court in the cases of Pierce v. Watkins, 114 Tex. 153, 263 S. W. 905, and Townes v. Lattimore, supra.

In Pierce v. Watkins it was decided that a judgment becomes final so that jurisdiction ceases (unless reinvoked through bill of review) with the expiration of 30 days (from date of rendition) unless a motion for new trial shall have been filed in the meantime.

In Townes v. Lattimore, it is made to appear that judgment (in the trial court) was rendered November 27, 1923, that original motion for new trial was filed November 30, 1923, that an amended motion was filed (without leave) January 2, 1924, and that on January 4, 1924 (over objection by the adverse party), the court sustained the amended motion and granted a new trial. The original motion, which was filed within the statutory period, was not presented or acted upon. The amended motion was not filed within the 30-day period fixed therefor by section 15. It was decided that the trial court had jurisdiction (for at least 45 days from date oí filing of the original motion) under section 14 to hear and determine the amended motion. In that case the amended motion was presented and sustained within that 45-day period; hence, it was not necessary to decide whether jurisdiction extended beyond that period, and the question was pretermitted.

Here the original motion was filed within the 10-day period allowed therefor by section 15, but the amended motion was not filed until the fifty-fourth day after date of original filing. And, in our opinion, the court had jurisdiction then to consider the motion.

So long, at least, as the powers which inhere in a court are left untouched, determination of the time when a judgment shall become final is a legislative prerogative. Pierce v. Watkins. That power was used to declare that—

“judgments of such civil district courts shall become as final after the expiration of thirty days after the date of judgment or after a motion for new trial is overruled as if the term of court had expired. After the expiration of .thirty days from the date the judgment is rendered or motion for new trial is overruled the judgment cannot be set aside except by bill of review,” etc. (Section 16).

The 30-day period mentioned relates to the overruling of a motion for new trial as plainly as it does to rendition of the judgment when no motion is filed. The result of filing a motion within the time allowed is to prevent finality and leave the judgment under control of the court. Of an original motion filed (as here) within the 10-day period it was said:

(It) “was a matter pending in the court, which had to be disposed of in some manner. The trial of the case was not concluded until the motion was disposed of. G. C. & S. F. Ry. Co. v. Muse, 109 Tex. 352, 207 S. W. 897, 4 A. L. R. 613.” Townes v. Lattimore, supra.

And it was because the original motion preserved jurisdiction that it was held (in the case cited) that failure to comply with the provision of section 15 naming a 20-day period therefor did not take away the court’s power to consider the amended motion.

Pendency of an undetermined original motion for new trial with the jurisdictional effect given it in Townes v. Lattimore necessarily results in affirmance of the order of the Court of Civil Appeals in this case. For section 14 of the act purports to require the court’s action “within not exceeding forty-five days after the original motion or amended motion is filed.” Where an amendment has been allowed, the 45-day period dates from that filing (and not from the original filing), and here the amended motion was presented and overruled on the same day leave was • given and it was filed.

Accordingly, we recommend that the question certified be answered, “No.”

CURETON, C. J.

Opinion of the Commission of Appeals answering certified questions adopted, and ordered certified to the- Court of Civil Appeals.  