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(— Tex. —, 207 S. W. 897.) der had been rendered granting a new trial, to set aside such order, as it would include the action of the court in granting a new trial. The court possessed the same control over the order as over the final judgment, and there is no essential difference in the limitations imposed in each case, by the expiration of the term, on the exercise of such control. The duty of the court to correct error or injustice in its previous action was the same, whether the error or injustice inhered in the final judgment, or in steps leading thereto, or in the award of the new trial.

The decisions of this court furnish no warrant for holding that the trial of this case was concluded on June 2, 1917. Not only did the presiding judge consent to consider a motion for rehearing immediately after announcing the award of the new trial, and not only was the motion for rehearing forthwith and on the same day filed, but the record shows that no final judgment on the verdict was entered until the 5th day of October, 1917. Had it not been decided, it would seem clear that the district court could not intend to close an extension of a term ordered for the express purpose of making "a full and complete conclusion" of a pending trial before the entry of final judgment. However, when the question was presented to this court as to whether a trial had been concluded prior to the entry nunc pro tunc of final judgment, in order to determine whether a statement of facts had been filed within the prescribed time after the adjournment of the term at which the trial was had, it was answered in the negative. The opinion, by Chief Justice Brown, declares: "Plaintiff in error contends that the trial court had no authority, after the adjournment of the term at which the trial was had, to make up a statement of facts proved at the hearing. Article 1379, Revised Statutes, contains this provision: 'After the trial of

any cause, either party may make out a written statement of the facts given in evidence on the trial, and submit the same to the opposite party, or his attorney, for inspection,' etc. It is also provided by an act of the twenty-eighth legislature that, 'by an order entered during the term, the court may authorize a statement of the facts to be made up in vacation, within twenty days after the adjournment of the term.' Laws 28th Leg. 32. It is true that, without such order, no statement of facts can be made after an adjournment of the term of the court at which the trial is concluded; but the phrase, 'after the trial,' denoting the time when the statement may be made, is broad enough to embrace the entry of the judgment nunc pro tunc as a part of the trial, justifying the court in making and certifying to the statement of facts after judgment was actually entered. Hill v. State, 41 Tex. 255; Sabine & E. T. R. Co. v. Joachimi, 58 Tex. 454; Jenks v. State, 39 Ind. 1." Palmo v. S. W. Slayden & Co. 100 Tex. 15, 92 S. W. 797.

The case of Hill v. State, supra, decides that "the trial may well be held incomplete un


til all the issues of Trial-when
law as well as of
fact have been determined, and the
final judgment entered."

The court of appeals had asked the question, "Does the trial embrace the final judgment?" and had answered: "We think so, unquestionably. The trial has not terminated until the final judgment has been entered and the sentence pronounced." Mapes v. State, 13 Tex. App. 91.

The supreme court of California likewise concluded that "until the decision itself has been entered in the minutes, or reduced to writing by the judge and signed by him and filed with the clerk, the case has not been tried to a legal intent." Hastings v. Hastings, 31 Cal. 98.

Giving the order on defendant's motion the benefit of the presump


sumption-order contrary,

of entering orders.

tion always indulged, in the absence of anything to the that it was regularly and lawfully made, we would be required to presume, if necessary to uphold same, that, being dated the same day as the order for the entry of the judgment, it was rendered prior thereto. Winder v. Winder, 86 Neb. 496, 497, 125 N. W. 1095; Skinner v. Roberts, 92 Ga. 366, 17 S. E. 353; Forrer v. Coffman, 23 Gratt. 878; Gammage v. Moore, 42 Tex. 170. And we could not say that, being rendered prior to the entry of final judgment, it failed to antedate the full and complete conclusion of the trial. Until the trial was fully and completely

concluded, the extension of the term

had not expired by the unequivocal

terms of the order.

We conclude that, on the facts shown by this record, the extension of the January, 1917, term had not expired when the court, on October 5, 1917, vacated the order for a new

trial, and hence the final judgment on the verdict of the jury is in full

force and effect.

And we have no doubt that the defendant is entitled to enforce by mandamus his clear legal right to have the reinstated judgment respected and enforced. It is no sound objection to the award of the mandamus that the defendant

Mandamusto enforce judgmentremedy by appeal.

might finally secure a review of an adverse judgment following a retrial, by means of appeal to the court of civil appeals and writ of error to the supreme court. For it has been the law of Texas since Bradley v. McCrabb, Dallam (Tex.) 507, that the writ of mandamus "will not only issue, 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." Not only would the remedy to defendant of appeal and writ of error, aft

er another trial, be manifestly tedious, but such remedy would also be inadequate; for it is the very essence of defendant's right that it is nality on entitled not to have



to respond further to plaintiff's cause of action than by payment of his judgment. Justice Ramsey, in speaking for the court in Wright v. Swayne, 104 Tex. 444, 140 S. W. 222, Ann. Cas. 1914B, 288, said: "If the court should wilfully refuse to execute its own judgments according to their true intent and effect, we would have the authority and it would be our duty to direct it to proceed to execute the judgment and sentence of the law.*

But it is insisted that since article

1595, Rev. Stat., confers on our courts of civil appeals, or any judge thereof, in vacation, original jurisdiction to compel a district judge to proceed to trial in any cause, and since, in the exercise of that jurisdiction a mandamus has been

awarded by the court of civil appeals of the fifth district, commanding the district judge to try this cause, we are bound by that award.

Section 3 of article 5 of the Constitution authorized the legislature to "confer original jurisdiction on the supreme court, to issue writs of quo warranto and mandamus in such cases as may be specified, except as against the governor of the state." Under that authority the legislature has conferred on this court original jurisdiction to issue writs of mandamus, "agreeable to the principles of law regulating such writs, against any district judge or court of civil appeals or judge of the court of civil appeals, or officer of the state government, except the governor of the state." Vernon's Anno. Civ. Stat. Supp. 1918, art. 1526, Rev. Stat.

It is inconceivable, in view of the express language of this article and the respective jurisdictions of the supreme court and of the courts for civil appeals, that it was

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

ever intended by the legislature that dicial district, in cause No. 22,277B,

Mandamuspower of supreme court.

this court should be precluded from granting full relief to one whom it found entitled to the writ of mandamus, under the law governing that writ, by reason of a contrary opinion of the court of civil appeals. While the acts of those courts, under the authority conferred by article 1595, are entitled to, and will always receive, our utmost consideration, they cannot control the exercise of this court's original jurisdiction; and, of course, when a judgment is pronounced in the exercise of that jurisdiction, all writs necessary for its enforcement may be issued. Pickle v. McCall, 86 Tex. 212, 24 S. W. 265; Hovey v. Shepherd, 105 Tex. 237, 147 S. W. 224.

It is, therefore, ordered that the clerk of this court issue the writ of mandamus, directed to the respondent, commanding him to enforce the final judgment heretofore entered on the minutes of the district court of Dallas county, forty-fourth ju

styled H. L. Collier v. Gulf, Colorado, & Santa Fe Railway Company, and to proceed no further with a new trial of said cause so long as said judgment remains unreversed.


The court, in the reported case (GULF, C. & S. F. R. Co. v. MUSE, ante, 613), recognized, at least by implication, the rule that mandamus will not ordinarily lie to compel an inferior court to act, if the complaining litigant has a speedy and adequate remedy by appeal or writ of error, but holds that the right of appeal, after a new trial and verdict, is not adequate where the error committed is the granting of the new trial. The question as to inadequacy of appeal or writ of error as affecting right to mandamus to inferior court, is discussed in the annotation following KETCHUM COAL Co. v. DISTRICT CT. post, p. 632.

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1. To warrant the issuance of a writ of mandamus to compel action by a court there must be lack of adequate remedy by appeal.

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

reasons for decision


Appeal fect. 2. The reasons given by a court for dismissing an action are not controlling in a reviewing court where the only question is whether or not the dismissal can be sustained in law. [See 2 R. C. L. 189.] Mandamus to compel action by court when lies.

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3. Where mandamus is sought to compel action on the part of a court, the legal right to the particular action

which is sought to be compelled must be clear, and the legal duty to do the act demanded on the part of the court must be equally clear. [See 18 R. C. L. 296.]

-to compel taking of jurisdiction.

4. Mandamus lies to compel a court to take jurisdiction of a cause and proceed to hear and determine it, where the court, without legal authority therefor, refuses jurisdiction. [See note, ante, p. 582].

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-purpose of proceeding.

12. Condemnation proceedings were conceived and created so that the title or ownership of real property which is claimed and needed for some public use may be transferred from one person, natural or artificial, to another, against the will of the owner.

[See 10 R. C. L. 14.]

admission of title of condemnor.

13. If the condemnor claims ownership in himself, the condemnee may admit the claim, and the condemnor is then entitled to judgment upon the merits, and the condemnee is entitled to go hence with his costs.

[See 10 R. C. L. 193, 194.]

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- adverse claim dismissal of suit. 14. A condemnee who claims title to the strip sought, and demands damages therefor, cannot claim to be dismissed from the proceedings because the condemnor sets up some adverse claim to the property.

-subsequent acquisition of title.

15. A condemnor, who, after institution of the proceedings, acquires an outstanding title, may set that fact up by supplemental pleadings without affecting his right to maintain the action.

- right to dispute title.

16. One seeking to condemn property for public use, who does not assert title or ownership in the land sought, cannot ordinarily dispute the title or ownership of the condemnee. Appeal review of dismissal of action.

17. A court ordinarily acts judicially in dismissing an action or complaint, and, in case it errs, such error may be reviewed on appeal, after the action is brought to final judgment.

[See 2 R. C. L. 42, 186; 9 R. C. L. 215.]

Mandamus to compel hearing of action.

18. The dismissal of a condemnation proceeding upon the assertion by the condemnor of an adverse title, by a court which has jurisdiction to try the issue presented, is a refusal to hear and determine the issues presented, which may be corrected by mandamus.

[See 18 R. C. L. 295.] -remedy by appeal sufficiency.

19. Where appeal does not lie until final judgment is entered between all the parties to the action, there is no remedy by appeal which will defeat

(48 Utah, 342, 159 Pac. 737.)

the issuance of a mandamus, where the court dismisses one of the defendants from a condemnation proceeding because of an issue of adverse title which arises between him and the condemnor.

[See 18 R. C. L. 297, 298.] Discovery ordering inspection of paper.

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data, correspondence, telegraphic or otherwise, original, carbon, or letter press copies thereof, and all bonds in possession of and under control of defendant, is too sweeping and indefinite, and should be denied.

[See 9 R. C. L. 171, 172.] Mandamus to compel allowance of inspection.

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22. Mandamus is not the proper remedy to compel a court to grant an order for inspection of books and papers in possession of the adverse party.

[See 18 R. C. L. 297, 298.] Appeal refusal of inspection.

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23. Error in granting or refusing inspection of books and papers in possession of an adverse party may be corrected by appeal, after final judgment upon exceptions reserved to the court's rulings.

[See 9 R. C. L. 188.]

APPLICATION by petitioner for a writ of mandamus to compel the defendant judge to vacate an order or judgment dismissing the defendant Coal Company from a certain action brought against it and other defendants by petitioner, and to reinstate said company as party defendant in such action, and proceed to trial against all of the defendants. Peremptory writ issued.

The facts are stated in the opinion Messrs. Boyd, DeVine, & Eccles and Walton & Walton, for petitioner:

Even had plaintiff alleged that the defendant Coal Company was the owner of the strip in question, and though it were estopped to deny title to such tract, it would by no authority be disentitled to try titles with the company as to the remaining lands.

Chicago & M. Electric R. Co. v. Diver, 213 Ill. 26, 72 N. E. 758; Illinois C. R. Co. v. Roskemmer, 264 Ill. 103, 105 N. E. 695.

It is proper for the condemnor, pending the trial, to amend his pleadings to allege want of title in a condemnee.

Wilcox v. St. Paul & N. P. R. Co. 35 Minn. 439, 29 N. W. 148.

In order for the condemnor to try titles with a person claiming damages, the condemnor should plead the same.

Gerrard v. Omaha, N. & B. H. R. Co. 14 Neb. 270, 15 N. W. 231; Dietrichs v. Lincoln & N. W. R. Co. 14 Neb. 355, 15 N. W. 728.

Ordinarily, issues of title do not arise between plaintiff and defendant in condemnation proceedings, with respect to the particular land sought to

of the court.

be taken, but "an issue of title may be made and decided if necessary."

2 Lewis, Em. Dom. 3d ed. § 659; Milwaukee & N. R. Co. v. Strange, 63 Wis. 178, 23 N. W. 432; Geneva v. Henson, 195 N. Y. 447, 88 N. E. 1104; Leavitt v. School Dist. 78 Me. 574, 7 Atl. 600.

Messrs. Dickson, Ellis, Ellis, & Schulder and Van Cott, Allison, & Riter, for defendants:

Petitioner is not entitled to a writ of mandamus, even though the trial court erred in dismissing the Coal Company from the case, with the exception of the trivial triangle.

High, Extr. Leg. Rem. §§ 149 et seq.; Kyrimes v. Kyrimes, 45 Utah, 168, 143 Pac. 232; State v. Booth, 21 Utah, 88, 59 Pac. 553; Civic Federation v. Salt Lake County, 22 Utah, 6, 61 Pac. 222; Merrill, Mandamus, § 201; Re Key, 189 U. S. 84, 47 L. ed. 720, 23 Sup. Ct. Rep. 624; Ex parte Baltimore & O. R. Co. 108 U. S. 566, 27 L. ed. 812, 2 Sup. Ct. Rep. 876; American Constr. Co. v. Jacksonville, T. & K. W. R. Co. 148 U. S. 372, 37 L. ed. 486, 13 Sup. Ct. Rep. 758; Ex parte Des Moines & M. R. Co. 103 U. S. 794, 26 L. ed. 461; 26 Cyc. 173, 206; Benson v. Ritchie, 44 Utah,

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