DALLAS STORAGE & WAREHOUSE CO. et al. v. TAYLOR, District Judge, et al., 77 S.W.2d 1031

S MEDLEY, Commissioner. Relators seek the issuance of a writ of mandamus to compel respondent, W. M. Taylor, special judge of the Fourteenth judicial district court of Dallas county, to hear and determine their amended motion for new trial filed in a suit in said court in which relators were defendants and respondent Lipscomb was plaintiff. The civil district courts of Dallas county are among those courts in which the rules of practice and procedure are prescribed by

article 2092, Revised Civil Statutes of 1923, as amended by

chapter 70, Acts of the 5th Called Session of the Forty-First Legislature 1930, p. 227 (Vernon’s Ann. Civ. St. art. 2092). A verdict was returned September 10, 1930. Relators filed on September 19, 1930, a motion to set aside the verdict. On September 20, 1930, judgment was rendered for respondent Lipscomb. Relators on September 26, 1930, filed a motion to set aside the judgment and grant them a new trial. The trial court on April 4, 1931, granted relators leave to file an amended motion for new trial, and the motion was filed on the same day.

When the amended motion for new trial came on to be heard on April 10, 1931, respondent Lipscomb filed a motion to strike the same; and the trial court thereupon entered an order overruling the motion to strike and also overruling the amended motion for new trial. The next day, however, the trial court set aside the order of April 10, 1931, overruling the amended motion for new trial, and held that it was without power to pass upon such motion. There was no agreement of the parties extending the time for the presentation, or for the decision, of the original motion, or of the amended motion.

This is one of three causes submitted at the same time and this day decided, presenting questions as to the correct construction of

article 2092, and particularly its subdivision 28 as amended (Vernon’s Ann. Civ. St art 2092, subd. 28); the other two causes being Independent Life Insurance Company of America v. T. A. Work, District Judge, et al. (Tex. Sup.) 77 S.W.(2d) 1036, and Millers Mutual Fire Insurance Company of Texas v. Wilkerson et al. (Tex. Sup.) 77 S.W.(2d) 1035. Relators contend that the provisions of subdivision 28, even after its amendment, and of subdivision 29 (Vernon’s Ann. Civ.

St. art. 2092, subds. 28, 29), fixing the time within which an amended motion for new trial may be filed, the time within which the motion must be presented, and the time within which it must be determined, are directory; that, after an original motion for new trial has been filed within the statutory period, the jurisdiction of the court over the case and over the judgment continues as long as such motion is undisposed of by order of the court, and that the court has the power to hear and determine an amended motion for new trial, even though it is not filed and not presented until after the expiration of 45 days from the filing of the original motion.

They rely upon Townes v. Lattimore, 114 Tex. 511, 272 S. W. 435; Diamond Ice & Cold Storage Co. v. Strube, 115 Tex. 515, 284 S. W. 935; and Nevitt v. Wilson, 116 Tex. 29, 285 S. W. 1979, 48 A. L. R. 355.

The contention of respondents is that the amendment of subdivision 28 was designed to change, and did change, the rule laid down in the cases above cited, and that, since that amendment became effective, a motion for new trial, whether original or amended, must be presented within 30 days from the date of its filing, and must be determined within 45 days from the date of its filing, and that, if the motion is not so presented or is not so determined, it is overruled by operation of law at the expiration of the period fixed by the statute.

In our opinion, respondents’ construction of the amended statute is correct. It is necessary, in construing the statute, that subdivision 2S as amended, subdivision 29, and subdivision 30 (Vernon’s Ann. Civ. St. art. 2092, subds. 28-30) be read together and careful consideration given to the purpose of their various provisions, and particularly to the change intended to be accomplished by the amendment. Subdivision 28, prior to its amendment, was as follows: “A motion for new trial filed during one term of court may be heard and acted on at the next term of court.

If a case or other matter is on trial or in process of hearing when the term of court expires, such trial, hearing or other matter may be proceeded with at the next term of the court. No motion for new trial or other motion or plea shall be considered as waived or overruled, because not acted on at the term of court at which it was filed, but may be acted on at the succeeding term or at any time which the judge may fix or to which it may have been postponed or continued by agreement of the parties with leave of the court.

All motions and amended motions for new trials shall be presented within thirty days after the original motion or amended motion is filed and shall be determined within not exceeding forty-five days after the original or amended motion is filed, unless by written agreement of the parties filed in the case, the decision of the motion is postponed to a later date.” (Italics ours.) This subdivision was amended by

chapter 70, Acts 5th Called Session, 41st Legislature 1030, which became effective 90 days after March 20, 1930 (Vernon’s Ann. Civ. St. art. 2092, subd. 28). The amendment rewrote the entire subdivision, but it made no change in its language except to substitute for the word “shall,” twice appearing in the original

section and italicized in the foregoing quotation of the section, in each instance the word “must.” So that the

section as amended, instead of providing that the motion shall be presented within 30 days and shall be determined within 45 days, now provides that the motion must be presented and must be determined within such periods. The emergency clause (section 2) throws further light upon the change intended to be made. It is: “The fact that the Supreme Court of Texas in the cases of Townes v. Lattimore, 114 Tex. 511 [272 S. W. 435], and Nevitt v. Wilson, 116 Tex. 29 [285 S. W. 1079, 48 A. L.

R. 355], has held that the present Statute is merely directory, and since no time limit within which motions for new trial may be filed and determined, creates an emergency,” etc.

From the change of the word “shall” to “must” and from the recitals in the emergency clause, it unmistakably appears that the Legislature intended to make mandatory rules which, as it interpreted the two decisions referred to in the emergency clatise, had theretofore been held to be but directory, and-intended to fix definite limits of time for the presentation and determination of motions for new trial, in order to expedite the final disposition of causes in the trial court.

Subdivision 29 provides that a motion for new trial shall be filed within 10 days after the judgment is rendered, and “may be amended by leave of the court at any time before it is acted on within twenty days after it is filed.” By the terms of subdivision 30, the judgment becomes “as final after the expiration of thirty days after the date of judgment or after a motion for a new trial is over-ruled as if the term of court had expired.”.

This language has been construed and applied a® making the judgment final, and fixing the end of the term as far as the immediate case is concerned, at the expiration of 30 days from the date of judgment or after a motion for new trial is overruied. Pierce Co. v. Watkins, 114 Tex. 153, 263 S. W. 905; Nevitt v. Wilson, 116 Tex. 29, 37, 285 S. W. 1079, 48 A. L. R. 355.

A statute which like this permits a motion filed at one term to be heard and determined at another, and which makes the judgment final only when 30 days have passed after the overruling of a motion for new trial, would give the trial court jurisdiction of- indefinite duration over its judgment unless some certain time were fixed within which the motion must be 'heard and determined. The term of court as to the particular case would never end until 30 days after the motion was overruled. Thus the postponement of hearing and determining the motion would result in an intolerable delay.

This the Legislature by the amendment of subdivision 28 undertook to prevent. , Subdivision 28 as amended cannot be construed as depriving the court of its jurisdiction over the case at the expiration of the 45-day period, or as fixing the end of the term for the particular case at the expiration of such period, because subdivision 30, which has not been amended, fixes by express language the time for the finality of the judgment,. and for the end of the term as to the case, at 30 days after the date of the judgment, or after motion for new trial is overruled.

In order to give mandatory effect, therefore, to the changed language of subdivision 28 and at the same time to harmonize it with subdivision 30, we hold that, :if a motion for new trial, whether original or amended, is not presented within 30 days from the date of its filing, it is overruled by operation of law at the expiration of such 30-day period; and, if a motion for new trial, whether original or amended, is presented within the 30-day period, but is not determined within 45 days: from the date of its filing, it is overruied by operation of law at the expiration of such 45-day period.

Subdivision 29 requires that the original motion for new trial be filed within 10 days after the judgment is rendered, and’1 it contains notliing suggesting that the court may permit its 'filing at a later date. However, since jurisdiction over the case continues, in the .absence of a motion, for SO days from the date of the judgment, the court may in its discretion, within such 30-day period, entertain a motion filed after the 10 days hut within the 30 days, and, if it does so and overrules it, the judgment does not become final until the expiration of 30 days from the time the motion was overruled.

This conclusion is in line with the many decisions holding that, notwithstanding the requirement of

article 2232 that motions for new trial in courts not governed by

article 2092 shall be filed within, 2. days after verdict is returned, the trial court has the discretion during the term tov«ntertain a motion filed after the expiration. ,,of, the 2-day period. See Dittman v. Model Baking Co. (Tex. Com. App.) 271 S. W. 75, and cases there cited. . .A strict construction must be given to that part of subdivision 29 which relates to the time for the filing of ari amended motion for new trial..

Trial courts could in large meas'ure defeat the purpose of the amendment of subdivision 28 by permitting amended motions to.be filed after the expiration of the time fixed by the statute for their filing. Subdivision 29 in exact and particular language delipes the conditions upon which a motion for new trial may be amended. They are: First, that leave of court must be obtained; second, that it can be amended only before it is acted upon;' and, third, that the amendment must be made within 20 days after the filing of the motion. Only on these terms is amendment permitted.

We therefore construe ' subdivision 29 to mean, since the amendment of subdivision 28, that an amended motion for new trial must be filed within 20 days after the original motion is filed, and that no amended motion may be filed after the expiration of that period. A construction which treats as mandatory the provisions of subdivision 29 authorizing the amendment of motions and those of subdivision 28 requiring that motions must be presented and determined within stated times gives effect to the express language of the statute and carries out the.intention of the Legislature.

It does not trench upon the inherent power of the court to exercise control over its judgment during the term at which it was rendered, or to grant a new trial so long as it has jurisdiction of the cause, for the jurisdiction of the court over the judgment and over the cause still continues, as above stated,' in accordance with the terms of subdivision 30, for 30 days after the motion for new trial is overruled.

The statute does not substantially affect or impair judicial functions or'powers, for it but fixes the time when the different steps in procedure are to be taken, allowing reasonable periods for their taking. Pierce Co. v. Watkins, supra. Under the construction herein given the statute, we reach the following conclusions: If no original motion for new trial is filed, or if such motion is filed after the time fixed by the' statute and is not entertained by the court, the judgment becomes final, and' the term is as to the case at an end upon the expiration of 30 days from the date of the judgment.

If an original motion for new trial is filed after the expiration of 10 days from the date of the judgment and is entertained by the court and overruled within 30 days after the date of judgment, the judgment becomes final, and the term of court is as to the ease at an end upon the expiration of 30 days from the date on which the motion was overruled. No amended motion for new trial may be filed after the expiration of 20 days from the date of the filing of the original motion, and an amended motion filed after the expiration of that period is to be treated as of no effect.

If an original motion for new trial is filed within the time fixed by the statute and no amended motion is filed within 20 days after the filing of the original motion, the original motion must be presented within 30 days from the date of its filing, and, if so presented, must be determined within 45 days from the date of its filing.

If an original motion is duly filed, and if an amended motion is filed within 20 days from the date of the filing of the original motion, the amended motion must be presented within 30 days from the date of its filing, and, if so presented, must be determined within 45 days from the date of its filing. If a motion for new trial duly filed, whether the original motion or the amended motion, is not presented within 30 days after the date of its filing, it is overruled by operation of law at the expiration of such 30-day period.

If a motion for new trial duly filed, whether original or amended, is presented within 30 days from the date of its filing, but. is not determined within 45 days from the date of its filing, it is overruled by operation of law at the expiration of such 45-day period. When a motion for new trial, duly filed, original, or amended, has been overruled, whether by order of court or by operation of law, the court still has control over the judgment and power to grant a new trial until the expiration of 30 days from the date on which the motion was overruled.

When that period has expired, the judgment is final, and the term of court is, as to the case, at an end. Since there was no agreement of the parties in this case, that part of subdivision 28 relating to written agreements for the postponement of the decision of motions is not discussed. It is construed in Independent Life Insurance Company of America v. T. A. Work, District Judge, et al. (Tex. Sup.) 77 S.W.(2d) 1036, this .day decided. The opinion of Justice Greenwood in that cause contains a more thorough discussion of the reasons for the conclusions herein stated.

In this case the original motion for new trial was duly filed on September 26, 1930. Not having been presented, it was overruled by operation of law at the expiration of 30 days from that date, which was on October 26, 1930. The judgment became final, and the term was, as to the case, at an end upon the expiration of 30 days from October 26, 1930; that is, on November 25, 1930. The trial court had no authority thereafter either to permit the filing of an amended motion or to pass upon a motion. The application for writ of mandamus is refused. ■ Opinion adopted by the Supreme Court.