Glidden Stores, Inc., et al. v. Hon. Ewing Boyd, District Judge, 116 Tex. 172

Mr. Judge SPEER delivered the opinion of the Commission of Appeals,

Section B. This is an original application by relators against the Honorable Ewing Boyd, Judge of the Fifty-fifth Judicial District for Harris County, to compel him to enter an order vacating a previous order made by him reinstating the case of Ruth Mims et al. against Glidden Stores, a Corporation et al.

The Fifty-fifth District Court comes within the terms and provisions of Chap. 105, General Laws of ithe Thirty-eighth Legislature, which regulate the practice and procedure “in civil district courts in counties having two or more district courts with civil jurisdiction only, and whose terms continue for three months or longer.” (Vernon’s Tex. Ann.

Stat., 1925, Art. 2092.) The application shows that on January 4, 1926, the court made its order dismissing the case at the cost of the plaintiffs, and directing that the defendants go hence without day and recover of the plaintiffs all costs incurred; that more than thirty days after the entry of such judgment of dismissal, the plaintiffs for the first time, filed their motion to reinstate the case, which motion was heard and sustained, and an order entered declaring “the court having heard the pleadings, the evidence, and the argument of counsel, is of the opinion that said petition or motion and the evidence present a meritorious cause for the reinstatement of this case, and it is therefore ordered, adjudged, and decreed that the order dismissing said cause from the docket is set aside and declared null and void and said cause is reinstated as a pending suit on the docket of this court, to which action of the court counsel for the defendant duly excepts and gives notice of appeal.” The application is predicated upon the provisions of the practice act referred to, as follows: “29.

A motion for new trial where required shall be filed within ten days after the judgment is rendered or other order complained of is entered, and may be amended by leave of court at any time within twenty days after it is filed before it is acted on. “30. 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 the 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 for sufficient cause, filed within the time allowed by law for the filing of bills of review in other District Courts.” The mandamus sought in this proceeding should be denied.

It is contended by respondents that the order complained of is not an order granting a motion for new trial within the meaning of the practice act; that an order reinstating a cause previously dismissed is not the granting of a new trial because there had been no original or first trial. It is obvious if this view be correct the Act under consideration has no application.

But we need not consider this contention, for it is equally obvious if the order is one granting a motion for new trial, within the meaning of the Act, the writ must yet be refused under the well recognized rule that mandamus will never be awarded where the relator has an adequate legal remedy. Glen v. Milam, 114 Texas, 160, 263 S. W., 900; Smith v. Conner, 98 Texas, 434, 84 S. W., 815; State v. Fisher, 94 Texas, 491, 62 S. W., 540; Aycock v. Clark, 94 Texas, 375, 60 S. W., 665; Steele v. Goodrich, 87 Texas, 401, 28 S. W., 939; State v. Morris, 86 Texas, 226, 24 S. W., 393; Southern, etc. Co. v. Texas, etc. (Com.

App.), 281 S. W., 1045. Now, Vernon’s Ann. Texas Stats., 1925, Art. 2249, provides: “* * * An appeal may be taken to the Court of Civil Appeals from every order of any district or county court in civil cases granting motions for new trial in any of the above mentioned cases and such appeal shall be taken within the same time and in the same manner as if the judgment was final.” So that, relators’ petition discloses that they had an adequate legal remedy by statutory appeal and the writ should in any event be denied. We therefore recommend that the writ of mandamus be denied.

The opinion of the Commission of Appeals is adopted and mandamus denied. C. M. Cureton, Chief Justice.