Texas Tram & Lumber Company v. L. B. Hightower, District Judge, 100 Tex. 126

GAINES, Chief Justice. This is an original suit in which a writ of mandamus is prayed for to compel the judge of the Sixtieth Judicial District of the State to enter judgment upon a verdict alleged to have been returned into his court at the April term of the present year.

The facts as alleged in the petition for the writ, stated briefly, but as we think with sufficient fullness for the purposes of this opinion, are as follows: In the year 1901 the Texas & New Orleans Railroad Company, a defendant herein, brought an action of trespass to try title in the District Court of Jefferson County against the Texas Tram and Lumber Company, the relator in this proceeding, to recover a parcel of land in the city of Beaumont.

The Sixtieth Judicial District having been subsequently established, the cause came on for trial in the latter court (regularly as must be presumed) during the last days of its April term. Under the statute establishing that district the April term began on the first Monday of that month and could “continue in session until and including the last Saturday in May” of the same year. At 8 o’clock p. m. on Saturday, the 26th day of May, 1906, it being the last day of the term, the jury having been charged, retired to' consider of their verdict.

Before the court was adjourned by the presiding judge at three minutes past twelve by railroad time, which was at least fifteen minutes before twelve p. m. by sun time, the jury came into court and returned a verdict in favor of defendant, the relator in this case. Counsel for plaintiff immediately made a motion for a new trial, which was overruled—but no judgment was entered upon the verdict. At the next term of the court, to-wit, on the 6th day of June, 1906, a motion was made in behalf of the relator, to have judgment entered upon the verdict.

This was resisted on the ground that the court Avas adjourned by operation of law when the verdict was returned, and a counter motion to set the verdict aside and to .declare a mistrial prevailed. The trial judge filed his conclusions of fact as above stated and determined, as a matter of law, that the adjournment was controlled by the railroad time and that the verdict came too late. We are of the opinion, that in this conclusion of law, the court erred.

We see no reason to doubt that when the Legislature prescribes the times at Avhich a term of the court shall begin and shall end the true time at the place of holding the court is meant; and we understand that the true time is to be determined by the instant at which the sun passes the meridian of the place for which it is to be calculated; and not by the time of its passage at some other place.

That where at a particular place, there are íavo measures of time, one the true time at that place and the other the timé at some'other place, the true time at the place of holding a court must govern the hour of its opening, was decided in England many years ago. In the case of Curtis v. Marsh (3 H. & N., 866) the court was holding its session at Dorchester and by some regulation ten o’clock in the morning was appointed as the hour for opening the court. The clock in the court room was set to Greenwich time, Avhich was ten minutes earlier than the Dorchester time.

The trial judge took his seat upon the bench and promptly opened his court at ten o’clock as shoAvn by the clock in court. The case Avas called and counsel for the defendant not having appeared the plaintiff’s counsel proceeded Avith the case. The evidence having been introduced, the court instructed a verdict for the plaintiff. After this and a minute and a half before ten o’clock, according to Dorchester time, counsel for the defendant appeared and asked a trial, of his case, which was refused.

A rule nisi having been obtained, it was by the Court of Exchequer made absolute—the court holding that the Dorchester time must govern and that the proceedings were premature. It appears from the report of that case that Greenwich time was the time upon which the railroads were run in England at that period; so that in that case as in this, the question arose out of the difference between the railroad time and the true time. In the case of Henderson v.

Reynolds (84 Ga., 159) the same principle was announced in an elaborate opinion, and the conclusion Avas reached, that the true time must control in determining whether the verdict which was returned about twelve o’clock p. m. of Saturday was returned on Saturday or Sunday and that according to the true time it was Sunday; but since they hold that the verdict was good though returned on Sunday, it would seem that the determination of the point was not necessary to the decision of the case. (See also Searles v.

Averhoff, 28 Neb., 668.) The question was distinctly presented in the case of Parker, Ex Parte (35 Texas Crim. App., 12) and in an elaborate and well considered opinion by - Judge Henderson, it was held that when the term ended by operation of law, was to be determined by the true time and not by the railroad time. There is nothing in the case from the Supreme Court of Kentucky of the Rochester Insurance Co. v. Peaslee Gaulbert Co. (87 S. W. Rep., 1115) which conflicts with our views.

It was there merely held, where it was shown that “standard time,” meaning, we presume, railroad time, was in common use at the place where the property insured was situated, and the policy of insurance called to expire at “noon” on a certain day, it was a question of fact to be determined by the jury, whether the parties to the instrument meant “noon’ as determined by the true time, or by the conventional time. To show that the proposition that the railroad time at Beaumont because in general use there should govern is not sound, it is only necessary to state it, in substance, in a different way.

The railroad time for the

section in which Texas is included, is not the true time for the particular locality, but the St. Louis time. So that the proposition resolves itself into saying, that because the people at Beaumont have adopted in the conduct of their affairs the St. Louis time, when the Legislature declared that the April term of the Sixtieth Judicial District should continue “until and including the last Saturday in May” the end of the day should be determined by the St. Louis time and not by the true time—namely, “the mean solar time.” It seems to us the proposition so stated carries with it its own refutation.

In the case of Hume v. Schintz (90 Texas, 72) we declined to award a writ of mandamus to compel the trial judge to enter a judgment upon a verdict, for the reason that the verdict, if it had not been set aside (a question we' found it unnecessary to decide), could be as effectually pleaded in bar of another action, as the judgment itself. We therefore concluded that the relator had a complete remedy by so pleading it, and therefore refused the writ. But the present case is very different. In the first place the validity of the verdict itself is here at issue and that depends upon a question of fact.

In the second the original action in this ease involves the title to land, which the verdict settles in the relator’s favor. It is entitled to have a judgment entered upon the verdict and to have his judgment recorded and its title made marketable. Pleading the verdict in another action is plainly not a complete remedy. Upon the undisputed facts of this case,, we are of opinion that the relator is entitled to the writ as prayed for, and accordingly the writ is awarded.