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Barn. & Ad. 667, 110 Eng. Reprint, 937, 2 Nev. & M. 390, 6 L. J. Mag. Cas. N. S. 21, and Rex v. Justices of Middlesex (1834) 5 Barn. & Ad. 1113, 110 Eng. Reprint, 1104, 3 L. J. Mag. Cas. N. S. 32, 3 Nev. & M. 110; Rex v. Hewes (1835) 3 Ad. & El. 725, 110 Eng. Reprint, 589, 5 L. J. Mag. Cas. N. S. 45, and Reg. v. Recorder (1850) 1 Eng. L. & Eq. Rep. 291, are believed to be conclusive upon this point, so far as the English authorities go; and our attention has not been directed to any American cases conflicting with this view of the law. If the circuit court declined to go into the merits of the case because the party complaining had not given the notice required by the statute, that was a preliminary objection,-a point of law, which this court can review upon a writ of mandamus; and if the circuit court called for a notice which the statute did not require, the mandamus ought to be made peremptory. It is not deemed important to go into any extended examination of this question, since, upon the return to the conditional mandamus by the circuit court, we were satisfied that the construction which that court gave to the statute was correct.' So, in the case at bar. The trial court entertained an objection to a preliminary matter, and then refused to proceed further. The return was before the court, and was, therefore, an undisputed fact, and it was thus a pure question of law as to whether the court should hear the case upon its merits."

In refusing to issue a writ of mandamus to compel an inferior court to dismiss a suit for want of proper service (which question is not within the scope of this note), the court, in Michigan Mut. F. Ins. Co. v. Wayne Circuit Judge (1897) 112 Mich. 270, 70 N. W. 582, said: "The writ will be entertained when the court has refused to retain jurisdiction, supposing it had no jurisdiction, when it had jurisdiction in fact, because, if the writ was not entertained under such circumstances, the party would be without remedy. On the contrary, if

the court claims jurisdiction in a case where it is not entitled to exercise it, such action of the court can be reviewed by appeal or writ of error. In such a case the writ of mandamus ought not to issue. Applying these general principles to the case now here, we do not regard it as a case where the writ should issue. If the court is wrong in asserting jurisdiction, the aggrieved party has a remedy by writ of error."

But in Hitchcock v. Wayne Circuit Judge (1906) 144 Mich. 362, 107 N. W. 1123, the court, in referring to this language, said: "It is quite apparent from this entire language that we were attempting to describe cases in which the trial court refused to make a final order which might be reviewed by appeal or writ of error. If such an order is made, even though made upon the erroneous notion that the trial court has not jurisdiction, mandamus will not lie." In Hill v. Superior Ct. (1911) 15 Cal. App. 307, 114 Pac. 805, supra, the court said: "As we view it, then, the trial judge, upon a preliminary matter, decided contrary to the law and the facts that the court had not acquired jurisdiction of the 'contestee,' and therefore was not authorized to proceed with the trial at the time appointed. Upon our understanding of the statutory provision, the court had and still has jurisdiction of the subject-matter and of the parties, and it was its plain duty to proceed to trial at the time appointed. It could not devest itself of this jurisdiction by an order purporting to quash the citation, nor is there a case presented here of jurisdiction to decide wrong as well as right, beyond the reach of the writ of mandate. Where there is no conflict as to the facts and, in the judgment of the higher tribunal, those facts confer jurisdiction, and make it clearly the duty of the lower tribunal to proceed with the trial of the cause, if there is no other adequate remedy, the writ of mandate will issue, commanding such action." J. W. M.


207 S. W. 897.)

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1. Legislative authority granted under sanction of the Constitution to the supreme court, of original jurisdiction to issue writs of mandamus against any district judge or judge of the court of appeals, empowers the supreme court to command a district court to enforce a judgment, although the court of appeals has attempted to compel it to proceed with a new trial of the case.

[See note on this question beginning on page 632.]

Courts duration of jurisdiction.

2. Ordinarily the jurisdiction of a court over both the subject-matter and the parties, once fully attached in a cause, continues until all issues, both of fact and of law, have been finally determined.

[See 7 R. C. L. 1029, 1030.]

- extension of term.

3. Where the statute permits continuance of a term of court beyond the date set for its termination, the court possesses the same power during the extension as during the original term. [See 7 R. C. L. 988 et seq.]

- power over orders.

4. A court may, before expiration of the term, revise or vacate any of its judgments, decrees, or orders, including orders granting new trials.

[See 15 R. C. L. 677; 20 R. C. L. 312.]

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Trial when concluded.

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Mandamus to enforce judgment remedy by appeal.

9. Mandamus lies to enforce a judgment reinstated upon setting aside an order granting a new trial, which the court refuses to do because the granting of the new trial was the final valid order in the case, although a review might be secured by appeal from the judgment finally entered upon the new trial.

[See 18 R. C. L. 132, 133.] Judgment finality on rights.

10. It is of the essence of the right of one against whom a judgment has been entered that he is entitled not to have to respond further to plaintiff's cause of action than by payment of his judgment.

[See 15 R. C. L. 824 et seq.]

APPLICATION for a writ of mandamus to compel respondent to enforce the final judgment which had been entered on the minutes of the District Court for Dallas County in an action brought against relator to recover damages for personal injuries, alleged to have been caused by its negli

gence, and to proceed no further with a new trial so long as the judgment remained unreversed. Writ issued.

The facts are stated in the opinion of the court.
Messrs. F. J. Wren, Ę. M. Browder,
Lee, Lomax, & Smith, and Terry, Cav-
in, & Mills, for petitioner:

Under the principles of law regulating such writs, mandamus is the proper, available, and required remedy, when necessary to effect the enforcement of a valid and subsisting judgment and the full protection and establishment of the rights of the parties thereunder.

Wright v. Swayne, 104 Tex. 444, 140 S. W. 221, Ann. Cas. 1914B, 288; Ketchum Coal Co. v. Christensen, 48 Utah, 214, 159 Pac. 541; 48 Utah, 342, post, 619, 159 Pac. 737; People ex rel. Farmers' Reservoir & Irrig. Co. v. Jefferson Dist. Ct. 46 Colo. 386, 24 L:R.A. (N.S.) 886, 133 Am. St. Rep. 84, 104 Pac. 484; Texas Tram & Lumber Co. v. Hightower, 100 Tex. 126, 6 L.R.A. (N.S.) 1046, 123 Am. St. Rep. 794, 96 S. W. 1071; 18 R. C. L. Mandamus, § 235; People ex rel. Holbrook v. Petit, 266 Ill. 628, 107 N. E. 830; People ex rel. Busch v. Green, 281 Ill. 52, 117 N. E. 764; Swager v. Gillham, 278 Ill. 295, 116 N. E. 71; People ex rel. Lucey v. Turney, 273 Ill. 546, 113 N. E. 105; Stafford v. Union Bank, 17 How. 275, 15 L. ed. 101; Scott v. Bedell, 108 Ga. 205, 33 S. E. 903; Williams v. McArthur, 111 Ga. 28, 36 S. E. 301; Whitmore v. Stewart, 61 Kan. 254, 59 Pac. 261; Thomson v. Sleeper, 168 Mass. 373, 47 N. E. 106; Watson v. Randall, 44 Mich. 514, 7 N. W. 84; State ex rel. Kansas City v. Renick, 157 Mo. 292, 57 S. W. 713; State ex rel. Clement v. Stokes, 99 Mo. App. 236, 73 S. W. 254; People ex rel. Dobson v. McClay, 2 Neb. 7; People ex rel. Carpentier v. Loucks, 28 Cal. 68; Northern Pacific Coast R. Co. v. Gardner, 79 Cal. 213, 21 Pac. 735; Moore v. Muse, 47 Tex. 210.

Mandamus will issue not only in cases where the party having a specific legal right has no other legal operative remedy; but where the other modes of redress are inadequate or tedious, the writ will be awarded.

High, Extr. Leg. Rem. 2d ed. p. 15; Shortt, Mandamus, p. 262; 26 Cyc. Mandamus, 171; Raisch v. Board of Education, 81 Cal. 542, 22 Pac. 890; Bailey v. Aransas County, 46 Tex. Civ. App. 547, 102 S. W. 1160; International Water Co. v. El Paso, 51 Tex. Civ. App. 321, 112 S. W. 816.

Messrs. George A. Harmon and Marcus M. Parks for defendant.

Greenwood, J., delivered the opinion of the court:

The district court of Dallas county was engaged in the trial by jury of a cause numbered 22,277B, wherein H. L. Collier was plaintiff and the Gulf, Colorado, & Santa Fe 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 terms, 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 mo

(Tex. —, 207 S. W. 897.)

tions 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. In 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, ninety days are 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


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, Honorable 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. 22,277B, 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. 22,277B."

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: First, that ordinarily the jurisdiction of a court over both Courts-duration subject-matter and parties, once fully attached in a cause, continues until all issues, both of fact and of law, have been finally determined. Second, that article 1726, Rev. Stat., authorizes not the calling by the district judge of a new, distinct, or independent term, but merely the continuance of the same term, so

of jurisdiction.

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the court necessa- extension of rily possesses the same power as during the original term. 15 C. J. 886; Mechanics' Bank v. Withers, 6 Wheat. 106, 5 L. ed. 217; Keith v. State, 91 Ala. 2, 10 L.R.A. 432, 8 So. 353. And, third, that it is within the power of


the court, at the same term, to re- power over vise or vacate any of its judgments, decrees, or orders, including orders granting new trials. Blum v. Wettermark, 58 Tex. 125; Nowlin v. Hughes, 2 Tex. App. Civ. Cas. (Willson) 272; Hume v. John B. Hood Camp Confederate Veterans, Tex. Civ. App. -, 69 S. W. 643; Watson v. Williamson, Tex. Civ. App., 76 S. W. 794; International & G. N. R. Co. v. Hugen, 45 Tex. Civ. App. 329, 100 S. W. 1000.

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It follows that, if the order vacating the award of the new 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 cause 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 conclusion of trial," as used in


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