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Barn. & Ad. 667, 110 Eng. Reprint, the court claims jurisdiction in a case 937, 2 Nev. & M. 390, 6 L. J. Mag. Cas. where it is not entitled to exercise it, N. S. 21, and Rex v. Justices of Middle- such action of the court can be resex (1834) 5 Barn. & Ad. 1113, 110 viewed by appeal or writ of error. In Eng. Reprint, 1104, 3 L. J. Mag. Cas. such a case the writ of mandamus N. S. 32, 3 Nev. & M. 110; Rex v. ought not to issue. Applying these Hewes (1835) 3 Ad. & El. 725, 110 general principles to the case now Eng. Reprint, 589, 5 L. J. Mag. Cas. here, we do not regard it as a case N. S. 45, and Reg. v. Recorder (1850) where the writ should issue. If the 1 Eng. L. & Eq. Rep. 291, are believed court is wrong in asserting jurisdicto be conclusive upon this point, so tion, the aggrieved party has a remedy far as the English authorities go; and by writ of error." our attention has not been directed But in Hitchcock v. Wayne Circuit to any American cases conflicting with Judge (1906) 144 Mich. 362, 107 N. W. this view of the law. If the circuit 1123, the court, in referring to this court declined to go into the merits language, said: “It is quite apparent of the case because the party com- from this entire language that we plaining had not given the notice re- were attempting to describe cases in quired by the statute, that was a pre- which the trial court refused to make liminary objection,-a point of law, a final order which might be reviewed which this court can review upon a by appeal or writ of error. If such writ of mandamus; and if the circuit an order is made, even though made court called for a notice which the upon the erroneous notion that the statute did not require, the mandamus trial court has not jurisdiction, manought to be made peremptory. It is damus will not lie." In Hill v. Sunot deemed important to go into any perior Ct. (1911) 15 Cal. App. 307, 114 extended examination of this question, Pac. 805, supra, the court said: “As since, upon the return to the condi- we view it, then, the trial judge, upon tional mandamus by the circuit court, a preliminary matter, decided conwe were satisfied that the construc- trary to the law and the facts that the tion which that court gave to the stat- court had not acquired jurisdiction of ute was correct.' So, in the case at the 'contestee,' and therefore was not bar. The trial court entertained an authorized to proceed with the trial objection to a preliminary matter, and

at the time appointed. Upon our unthen refused to proceed further. The derstanding of the statutory provireturn was before the court, and was,

sion, the court had and still has jutherefore, an undisputed fact, and it

risdiction of the subject-matter and was thus a pure question of law as to

of the parties, and it was its plain whether the court should hear the

duty to proceed to trial at the time case upon its merits.”

appointed. It could not devest itself of In refusing to issue a writ of man

this jurisdiction by an order purportdamus to compel an inferior court to

ing to quash the citation, nor is there dismiss a suit for want of proper serv

a case presented here of jurisdiction ice (which question is not within the scope of this note), the court, in

to decide wrong as well as right, beMichigan Mut. F. Ins. Co. v. Wayne

yond the reach of the writ of manCircuit Judge (1897) 112 Mich. 270,

date. Where there is no conflict as to 70 N. W. 582, said: “The writ will be

the facts and, in the judgment of the entertained when the court has re

higher tribunal, those facts confer jufused to retain jurisdiction, supposing risdiction, and make it clearly the it had no jurisdiction, when it had duty of the lower tribunal to proceed jurisdiction in fact, because, if the

with the trial of the cause, if there writ was not entertained under such is no other adequate remedy, the writ circumstances, the party would be of mandate will issue, commanding without remedy. On the contrary, if such action."

J. W. M.

(- Tem. -, 207 8. W. 897.)


E. B. MUSE, District Judge.

Texas Supreme Court - January 8, 1919.

(- Tex. - 207 S. W. 897.)

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Mandamus — power of supreme court.

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. Trial when concluded.

2. Ordinarily the jurisdiction of a 7. A trial is not concluded until encourt over both the subject matter and try of final judgment. the parties, once fully attached in a [See 15 R. C. L. 569.] cause, continues until all issues, both

Evidence – presumption - order of of fact and of law, have been finally entering orders. determined.

8. An order granting a motion for (See 7 R. C. L. 1029, 1030.]

rehearing of an order granting a new - extension of term.

trial, entered on the same day as the 3. Where the statute permits con- entry of final judgment in the case, tinuance of a term of court beyond the will be presumed to have been entered date set for its termination, the court prior to the final judgment. possesses the same power during the [See 10 R. C. L. 882.] extension as during the original term.

Mandamus - to enforce judgment (See 7 R. C. L. 988 et seq.]

remedy by appeal. - power over orders.

9. Mandamus lies to enforce a judg4. A court may, before expiration of

ment reinstated upon setting aside an the term, revise or vacate any of its

order granting a new trial, which the judgments, decrees, or orders, includ

court refuses to do because the granting orders granting new trials,

ing of the new trial was the final valid [See 15 R. C. L. 677; 20 R. C. L. 312.]

order in the case, although a review

might be secured by appeal from the - conclusion of trial.

judgment finally entered upon the new 5. Statutory authority to extend a

trial. term of court to the conclusion of a pending trial does not terminate with

[See 18 R. C. L. 132, 133.] the granting of a new trial in the case,

Judgment - finality on rights. if a motion to set aside such order is 10. It is of the essence of the right seasonably made.

of one against whom a judgment has [See 20 R. C. L. 313.]

been entered that he is entitled not to Definition - trial.

have to respond further to plaintiff's 6. The word “trial" means the judi- cause of action than by payment of his cial investigation and determination judgment. of the issues between parties.

[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 negligence, 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, Messrs. George A. Harmon and Mar. Lee, Lomax, & Smith, and Terry, Cav. cus M. Parks for defendant. in, & Mills, for petitioner: Under the principles of law regulat- ion of the court:

Greenwood, J., delivered the opining such writs, mandamus is the proper, available, and required remedy,

The district court of Dallas when necessary to effect the enforce- county was engaged in the trial by ment of a valid and subsisting judg. jury of a cause numbered 22,277B, ment and the full protection and es- wherein H. L. Collier was plaintiff tablishment of the rights of the par- and the Gulf, Colorado, & Santa Fe ties thereunder.

Railway Company was defendant. Wright v. Swayne, 104 Tex. 444, 140

at its January term, 1917, without S. W. 221, Ann. Cas. 1914B, 288; Ketch

time to complete the trial before um Coal Co. v. Christensen, 48 Utah,

the expiration of the term, where214, 159 Pac. 541; 48 Utah, 342, post, 619, 159 Pac. 737; People ex rel. Farm

upon the presiding judge extended ers' Reservoir & Irrig. Co. v. Jef

the term by the following order, ferson Dist. Ct. 46 Colo. 386, 24 L:R.A.

duly entered on the minutes on (N.S.) 886, 133 Am. St. Rep. 84, 104 March 31, 1917, to wit: Pac. 484; Texas Tram & Lumber Co. v. "Whereas, the trial of the above Hightower, 100 Tex. 126, 6 L.R.A. entitled and numbered cause com(N.S.) 1046, 123 Am. St. Rep. 794, 96 menced on March 19, 1917, and S. W. 1071; 18 R. C. L. Mandamus, §

"Whereas, the end of the Janu235; People ex rel. Holbrook v. Petit, 266 Ill. 628, 107 N. E. 830; People ex

ary term, 1917, is at hand, said rel. Busch v. Green, 281 Ill. 52, 117 N.

term ending March 31, 1917, and E. 764; Swager v. Gillham, 278 Ill. 295, "Whereas, the trial of the above 116 N. E. 71; People ex rel. Lucey v.

numbered and entitled cause has Turney, 273 Ill. 546, 113 N. E. 105; not been concluded, but is still in Stafford v. Union Bank, 17 How. 275, progress, and 15 L. ed. 101; Scott v. Bedell, 108 Ga. "Whereas, it will take some time 205, 33 S. E. 903; Williams v. McAr- to conclude the trial of said cause: thur, 111 Ga. 28, 36 S. E. 301; Whitmore

“Therefore, I, E. B. Muse, the v. Stewart, 61 Kan. 254, 59 Pac. 261;

presiding judge of the forty-fourth Thomson v. Sleeper, 168 Mass. 373, 47

district court, with the power vestN. E. 106; Watson v. Randall, 44 Mich. 514, 7 N. W. 84; State ex rel. Kansas

ed in me by the statutes of the state City v. Renick, 157 Mo. 292, 57 S. W.

of Texas, under article 1726, do 713; State ex rel. Clement v. Stokes,

deem it expedient and necessary 99 Mo. App. 236, 73 S. W. 254; People

that the rights of all parties may be ex rel. Dobson v. McClay, 2 Neb. 7; preserved and protected, do extend People ex rel. Carpentier v. Loucks, the January terms, A. D. 1917, of 28 Cal. 68; Northern Pacific Coast R.

said court until the conclusion of Co. v. Gardner, 79 Cal. 213, 21 Pac. said pending trial; the extension of 735; Moore v. Muse, 47 Tex. 210. said January term being intended

Mandamus will issue not only in to cover such time as necessary to cases where the party having a spe- finish and complete the trial of said cific legal right has no other legal above numbered and entitled cause, operative remedy; but where the other and extension of said trial will inmodes of redress are inadequate or clude and is intended to include the tedious, the writ will be awarded.

conclusion of this trial in the ordiHigh, Extr. Leg. Rem. 2d ed. p. 15;

nary, legal, and statutory manner, Shortt, Mandamus, p. 262; 26 Cyc.

the submission of the cause to the Mandamus, 171; Raisch v. Board of Education, 81 Cal. 542, 22 Pac. 890;

jury, their deliberation, and finding Bailey v. Aransas County, 46 Tex.

upon same, the filing of a motion Civ. App. 547, 102 S. W. 1160; Inter- for new trial, if same becomes national Water Co. v. El Paso, 51 Tex. necessary by either party, and the Civ. App. 321, 112 S. W. 816.

action of the court upon such mo(- Ter. 207 S. W. 897.) tions as may be necessary and be- Now on this date, in open court, it come incident thereto under the is ordered, adjudged, and decreed statute growing out of said trial. by the court that said defendant's This term is extended to include motion for rehearing be granted everything under the law that is and that the order at this extennecessary to be done to make a full sion of term heretofore made on and complete conclusion of said June 2, 1917, granting plaintiff a pending trial now in progress in new trial herein, be set aside, and this court.”

held for naught, and plaintiff's On April 11, 1917, the jury re- original and amended motions for turned a general verdict in favor of new trial being now fully considthe plaintiff, against the defendant, ered, they and each of them are in for the sum of $4,000, and the ver- all things overruled, to which ruldict was duly noted on the docket. ing of the court the plaintiff H. L.

Within two days after the ver- Collier in open court excepted and dict was rendered, the plaintiff filed gave notice of appeal to the court a motion for a new trial, which was of civil appeals for the fifth suafterwards amended, and on June preme judicial district sitting at 2, 1917, the court made and entered Dallas. And on motion of plaintiff, an order finding that the motion ninety days are hereby granted to was well taken and adjudging that plaintiff from and after this date, a new trial be granted.

in which to prepare and file stateImmediately after the announce- ment of facts and bills of exception. ment by the court of this order, on And now by this order the said plaintiff's motion for a new trial, above cause being finally disposed of the defendant, on June 2, 1917, filed in this court under the extension of a motion for a rehearing and to set the January term of this court made aside said order, and the court di- March 31, 1917, for the completion rected counsel for the respective of the trial of said cause and all orparties to submit in writing such ders and motions incident thereto briefs and arguments on defend- as per the terms of said order, the ant's motion as they might desire said extension of said January term to present. In compliance with the of this court is now here declared court's direction, counsel on both closed on this October 5, 1917." sides submitted written briefs and The court, on the same day, viz., arguments, the last being in behalf October 5, 1917, caused to be enof plaintiff, and being filed on Sep- tered on the minutes, “as of April tember 15, 1917.

11, 1917," a final judgment, in conThe court took defendant's mo- formity with the verdict, in favor of tion, and the briefs and arguments the plaintiff and against the defendthereon, under advisement until Oc

ant for $4,000, with interest from tober 5, 1917, when it granted the April 11, 1917, at the rate of 6 per

, motion by the following order, to

cent per annum and all costs, for wit: "The court having had under

which execution was ordered to isadvisement the motion of defendant filed herein June 2, 1917, asking judgment had been entered on the

sue. Prior to October 5, 1917, no for a reconsideration of, and a re

verdict. hearing on, the order of this court

At the October term of the court, made June 2, 1917, sustaining plaintiff's motions for a new trial

the plaintiff filed a motion to set and granting the plaintiff a new

said cause for trial, which was

overruled, and thereupon plaintiff trial and of said motions, and said

filed his original proceeding for motion and the arguments of coun- mandamus against the district sel for plaintiff and defendant judge in the court of civil appeals of thereon having been duly consid- the fifth supreme judicial district ered by the court, and the court be- of Texas, and in said proceeding, ing fully advised in the premises : on October 27, 1917, obtained the



following judgment, to wit: “This - that during the period of extension cause came on to be heard, the ap- under the article plication of relator, H. L. Collier, the court necessa- extension of for a writ of mandamus, to compel rily possesses the the respondent, Honorable E. B. same power as during the original Muse, judge of the forty-fourth ju- term. 15 C. J. 886; Mechanics' dicial district, Dallas county, to

Bank v. Withers, 6 Wheat. 106, 5 L. proceed to trial and judgment in the

ed. 217; Keith v. State, 91 Ala. 2, case of H. L. Collier v. Gulf, Colo

10 L.R.A. 432, 8 So. 353. And, rado, & Santa Fe Railway Company, third, that it is within the power of No. 22,277B, now pending in said

the court, at the court, and the same being inspect- vise or vacate any

same term, to re- -power over ed, because it is the opinion of this

of its judgments, decrees, or orders, court that the trial of said cause

including orders granting new was concluded upon the granting of trials. Blum v. Wettermark, 58 plaintiff's motion for a new trial Tex. 125; Nowlin v. Hughes, 2 Tex. by said court, that the extended App. Civ. Cas. (Willson) 272; Hume term of that court thereupon ended,

v. John B. Hood Camp Confederate and all subsequent orders made in Veterans, - Tex. Civ. App. - 69

. the case were without authority of S. W. 643; Watson v. Williamson, law and void: It is, therefore, con- - Tex. Civ. App. 76 S. W. 794;

-, sidered, adjudged, and ordered that International & G. N. R. Co. v. the application be granted, and that Hugen, 45 Tex. Civ. App. 329, 100 the writ of mandamus issue, com- S. W. 1000. manding the respondent to proceed It follows that, if the order vacatto the trial of said cause No. ing the award of the new trial was 22,277B."

made before the end of the extendOn September 4, 1918, the chiefed term, its validity is beyond quesjustice of the supreme court, in tion.

tion. The district judge extended vacation, granted a temporary writ the term "until the conclusion of of prohibition, directing the dis- said pending trial.” The honorable trict judge to desist from a new court of civil appeals determined trial of the cause, which he had or

that the “trial of said cause was dered in compliance with the judg- concluded upon the granting of ment of the court of civil appeals, plaintiff's motion for a new trial," until this proceeding could be

could be and that was on June 2, 1917. heard and determined by this court.

The language of article 1726 has It will aid in the correct determi

not heretofore been construed by nation of the validity of the order of

this court; but we think that the the trial court, setting aside its

words, "conclusion

of previous order for a new trial, to

such pending conclusion of bear in mind the following thor

trial,” as used in oughly established principles: First, given such a restricted meaning as

said article, cannot be properly that ordinarily the jurisdiction of a

is required to support the decision court over both Courts-duration subject-matter and

of the court of civil appeals. of jurisdiction, parties, once fully nary and accepted

Giving the word “trial” its ordi

, attached in a cause, continues until meaning in law of Demon.itionall issues, both of fact and of law, "the

judicial inhave been finally determined. Sec

vestigation and determination of ond, that article 1726, Rev. Stat., the issues between parties" (Cenauthorizes not the calling by the tury Dict. 28 Am. & Eng. Enc. Law, district judge of a new, distinct, or 636), it would just as much include independent term, but merely the the action of the court on a motion, continuance of the same term, so presented immediately after an or



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